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2002 DIGILAW 1914 (RAJ)

Dilip Singh v. State of Rajasthan

2002-12-03

B.PRASAD, N.P.GUPTA

body2002
JUDGMENT 1. - These two criminal appeals arise out of the judgment of Additional Sessions Judge No. 3, Jodhpur in Sessions Case No. 22/98 dated 5.10.1999 whereby three accused persons were tried. Out of these three, two persons were convicted and one was acquitted. The details of the conviction and sentences passed against the accused appellants is as under : 2. Dilip Singh has been convicted under Section 302 I.P.C. and has been sentenced to life imprisonment with a fine of Rs. 1000/-, in default of payment of fine to further undergo six months S.I. Dilip Singh has been further convicted under Section 509 I.P.C. and has been sentenced to six months S.I. 3. Accused Mahendra @ Goga has been convicted under Section 302/34 I.P.C. and has been sentenced to life imprisonment with a fine of Rs. 1000/-, in default of payment of fine to further undergo six months S.I. Mahendra @ Goga has been further convicted under Section 509 I.P.C. and has been sentenced to six months S.I. 4. Fourth, named, accused person Trivesh was found to be juvenile offender and thus he was not tried by the court under reference and was proceeded against in the court of Additional Chief Judicial Magistrate No. 3, Jodhpur. 5. FIR was lodged by the complainant Mahendra Singh S/o. Shri Ratan Singh on 17.3.1997 at about 6.30 p.m., at Police Station, Mahamandir, being FIR No. 108. In the First Information Report, Mahendra Singh alleged that on 16.3.1997 at about 4.00 p.m. he had gone to meet his friend Pramod. While he was with Pramod, 10 minutes later Dilip Singh arrived there. No sooner he arrived, Dilip Singh started abusing Pramod. He reasoned with Dilip Singh and on his persuation he went back to his home. 6. Further narrating the story in the FIR, the first informant reports that on the date of incidence at about 4.00 p.m. Pramod came to his house and said that he should come to his place and persuade Dilip Singh. At that time. his friend Narpat Singh Bhati was also there. Pramod was asked to go home. Mahendra said that he and Narpat Singh would arrive at his place at about 5.30 p.m. At about 5.15 p.m., Mahendra Singh, the first informant and Narpat Singh started for the residence of Pramod on scooter. Some distance away from the house of Pramod they parked the scooter near Gymnasium. Pramod was asked to go home. Mahendra said that he and Narpat Singh would arrive at his place at about 5.30 p.m. At about 5.15 p.m., Mahendra Singh, the first informant and Narpat Singh started for the residence of Pramod on scooter. Some distance away from the house of Pramod they parked the scooter near Gymnasium. 7. While they were parking their scooter, at that time Dilip Singh alongwith accused Mahendra Singh @ Goga came. Dilip Singh said that who is this Narpat Singh to intervene in between us and Pramod. After this exortation accused Mahendra Singh @ Goga caught hold of Narpat Singh and exorted Dilip Singh to finish Narpat Singh. Dilip Singh inflicted Katar blows on the person of Narpat Singh in quick succession. Narpat Singh fell down. He was bleeding. While the scuffle and the assault was going on, Narendra Sharma and Pramod came out of the house. They saw the quarrel. Narendra Sharma tried to intervene. He was inflicted injuries by Mahendra Singh @ Goga. Narpat Singh succumbed to his injuries. The dead-body of Narpat Singh was lying at the scene of occurrence. 8. On such report being submitted, a case was registered and investigation started. During investigation, site was inspected. Post-mortem of the dead body was performed and the accused were arrested. After completion of investigation, charge-sheet was filed against accused. Consequently the three accused persons were sent for trial before the trial court. The accused persons were charged as under : 9. Dilip Singh has been charged under Sections 302 and 509 I.PC. Mahendra Singh @ Goga has been charged under Sections 302/34, 323 and 509 I.PC. and Roop Singh has been charged under Sections 212 and 216 I.P.C. 10. At the trial, prosecution supported its case with the production of 23 witnesses and exhibited 41 documents. After the closure of the prosecution evidence, the accused were examined under Section 313 Cr.PC. They examined three witnesses in defence and got two documents exhibited. 11. The trial court framed two questions. First, whether the prosecution has succeeded in establishing charges against the accused persons beyond reasonable doubt. Second, if the first question is answered in positive, then what sentence is to be awarded to the accused persons. 12. The prosecution relied upon four eye-witnesses, namely, PW-5 Narendra Sharma, PW-6 Pramod Sharma, PW-9 Mahendra Singh Rathore and PW-16 Chandra Kala. 13. First, whether the prosecution has succeeded in establishing charges against the accused persons beyond reasonable doubt. Second, if the first question is answered in positive, then what sentence is to be awarded to the accused persons. 12. The prosecution relied upon four eye-witnesses, namely, PW-5 Narendra Sharma, PW-6 Pramod Sharma, PW-9 Mahendra Singh Rathore and PW-16 Chandra Kala. 13. The trial court after considering the evidence of the eye-witnesses and the circumstantial evidence of recovery of articles in the shape of pent and weapon of offence which were found to be stained with human blood, found that the deceased was the victim of the assault made on him and due to excessive bleeding the deceased went into shock and succumbed to the injuries. 14. The trial court considered the arguments of the defence in the light of the opinion evidence of the Doctor that the injuries sustained by the deceased Narpat Singh could be the result of two separate weapons and expressed that this is only an opinion evidence of the expert. In the face of a positive eye-witness account and the nature of injuries, it cannot be said that the deceased had sustained injuries by two separate weapons. 15. The trial court has also negatived the suggestion of the defence that the accused had not intended to cause death of the injured, and it was a quarrel which erupted at the spur of moment and, therefore, the offence will not be covered by the definition of murder. It could at best be culpable homicide not amounting to murder. The trial court has observed that the way injuries has been caused, it stands out prominently that the victim has succumbed to the injuries instantaneously. Thus, none of the exception of Section 300 I.P.C. are attracted. It can safely be said that the offence was of murder. 16. The trial court has also found that since Mahendra Singh @ Goga has caught hold of the deceased Narpat Singh, therefore, he was sharing the common intentions with Dilip Singh. Implicit reliance has been placed by the trial court on eye-witnesses. It has been observed by the trial court that no such circumstance has been brought forward in the cross-examination of the eye-witnesses which would have the tendency of destroying their intrensic worth. The trial court has believed the testimony of eye-witnesses. Implicit reliance has been placed by the trial court on eye-witnesses. It has been observed by the trial court that no such circumstance has been brought forward in the cross-examination of the eye-witnesses which would have the tendency of destroying their intrensic worth. The trial court has believed the testimony of eye-witnesses. Presence of Pramod has been found to be of natural because his house is just in front of the scene of occurrence and, therefore, he was a natural witness. 17. The defence suggested that no hue and cry was made by the eye-witnesses, thus their conduct in un-natural. The trial court in response to it has observed that the incident had occurred in couple of minutes and, therefore, it cannot be said that any hue and cry could possibly be made. If at all raised would not have resulted in any consequence. 18. The trial court has further examined the case of the prosecution whereby it was contested that the FIR is not the same document which was submitted by the witness. According to the trial court the report was made within the shortest possible time. Since the incident was of evening at about 5.30 p.m., lodging of the report at 6.30 p.m. was considered to be in time. Within reasonable time the report was sent to the Magistrate. Next morning when the court opens, it reached court. FIR was not considered to be a belated report. It was observed that the contents as narrated inspire confidence. Thus, the argument of the defence that the report was belated one has not been held to be of the nature as the defence has alleged. 19. Defence has also relied on its witnesses whereby it was suggested that some unknown assailants have caused the death. This story has been considered by the trial court to be un-natural. In defence it has not been suggested that the deceased had any enmity with anybody which would be responsible for attracting somebody's wreath for causing his death. Thus, the defence version has not been accepted by the trial court. 20. The recoveries made at the instance of Dilip Singh have been pressed into service. Recovered pent and the weapon of offence (Katar) have been found to be stained with human blood. The prosecution version has thus been held to be corroborated by these recoveries also. Thus, the defence version has not been accepted by the trial court. 20. The recoveries made at the instance of Dilip Singh have been pressed into service. Recovered pent and the weapon of offence (Katar) have been found to be stained with human blood. The prosecution version has thus been held to be corroborated by these recoveries also. Presence of human blood on the articles recovered and the medical evidence has been held to fortify the prosecution case. The trial court has also found that the accused Mahendra Singh caused injuries to Narendra. Offence of 323 I.P.C. has been found to be established against the Mahendra. So also offence under Section 509 I.P.C. has been found to be established against the appellants on the strength of the evidence of PW-16 Chandra Kala. However, the trial court has found that the evidence to establish guilt of the charged Sections against Roop Singh falls short of bringing home the offence. Hence, Roop Singh has been acquitted of the charges levelled against him. 21. The learned defence counsel assailing the conviction, has urged that the trial court was wrong in convicting the accused appellants. 22. The learned counsel for the parties were heard. The defence counsel has in principal reiterated his arguments advanced before the trial court. Much emphasis has been laid down by the learned counsel for the defence on the genuineness of the First Information Report. Learned counsel for the defence submits that the FIR (Ex.P/9) has not been produced in the Police Station at the alleged time and date. This inference is drawn by the learned counsel on the basis that the FIR was not sent to the court of Judicial Magistrate forthwith i.e. in the night of 17.3.1997 when the report was lodged at 6.30 p.m. The report was in fact sent to the Court on 18.3.1997. Defence claims that no explanation has been given for the late sending of the FIR. Thus, it is contended that it is not the real FIR lodged by the prosecution witnesses. It has further been contended on behalf of the defence that the Inquest Memo (Ex.P/4) and the actual Description Memo of the dead-body also does not contain the details of the incident. Thus, it shows that the report was not the real report and until these memos were prepared, nothing was known to the prosecution. 23. It has further been contended on behalf of the defence that the Inquest Memo (Ex.P/4) and the actual Description Memo of the dead-body also does not contain the details of the incident. Thus, it shows that the report was not the real report and until these memos were prepared, nothing was known to the prosecution. 23. Learned counsel for the defence has further alleged that Narendra Sharma has said in his statement that the report was lodged by Mahendra and Pramod after they reached Police Station at about 8.30 p.m. whereas it is claimed that the report has been lodged at 6.30 p.m. 24. Learned Public Prosecutor per contra argued that Narendra Sharma is not the signatory of the FIR. The signatories of the FIR is Mahendra Singh. Mahendra Singh has said that the FIR was lodged before sunset. He had lodged the report within 1/2 hour of the the incident. In cross-examination of this witness, the defence has not been able to elucidate anything which can be said to be of any worth. The witness Mahendra Singh has not been cross-examined by showing the FIR (Ex.P/9) that this was not the report lodged at the time given in the report. Further while the FIR was lodged at 6.30 p.m. the same was sent to the court next morning when the court opened and this delay by no stretch of imagination can be considered to be a delay which would dilute the effect of the presumption that the official act is done as alleged unless contrary is proved. The Investigating Officer had supported the prosecution witnesses that the report was lodged at 6.30 p.m. The documentation as has been sought to be discredited by oral arguments is impermissible and thus the defence story that the FIR is not the correct report cannot be accepted. 25. Learned counsel for the State has further submitted that the broad facts of the prosecution case being available in the FIR lodged within an hour of the incident, inspires confidence and such has been felt by the trial court. 26. Learned counsel for the State has further submitted that Narendra Sharma was not the witness who signed the FIR and further in his statement only report is mentioned and it is not described as FIR. 26. Learned counsel for the State has further submitted that Narendra Sharma was not the witness who signed the FIR and further in his statement only report is mentioned and it is not described as FIR. Further this witness was not confronted with the FIR to explain his stand about the report which he was taking about. Thus, in abstract the question was asked and answered and, therefore, such vague statement cannot discard story given by the first informant himself and supported by the Investigating Officer. 27. Learned counsel for the defence has also assailed the version of the eye-witnesses. The learned counsel for the State said that the prosecution witnesses cannot be said to be the eye-witnesses. Defence has claimed that in fact, non of them witnessed the occurrence. It has been alleged that according to PW-5 Narendra Sharma who is alleged to have said in his statement that he saw Narpat Singh at the gate of Gymnasium when Pramod and 15-16 people were standing there. His statement that he was hit by the clip when he reached the seen of occurrence by Mahendra has also been empahsised by the learned counsel for the defence saying that he had lost his consciousness by that. His presence has further been said to be doubted by the defence by saying that he has failed to describe the weapon of offence in detail. So also the clip with which he was assaulted have not been described by this witness. PW-6 Pramod has been sought to be discredited by the defence by saying that this witness has failed to describe the colour of the cloths of Dilip Singh and Mahendra. He has also not been able to describe the weapon of offence. PW-9 Mahainder has been sought to be discredited on the ground that he has also not been able to describe the weapon of offence and colour of the cloths of the accused. So also PW-16 Chandra Kala. 28. Learned counsel for the State per contra alleged that it is too minute a detail to be asked to the prosecution witnesses that what was the size and shape of the weapon. Learned counsel for the State has further alleged that the colour of the cloths is not a detail which relates to the occurrence. Unnecessary details certainly get lost and, therefore, on these being not mentioned, the witnesses cannot be discredited. 29. Learned counsel for the State has further alleged that the colour of the cloths is not a detail which relates to the occurrence. Unnecessary details certainly get lost and, therefore, on these being not mentioned, the witnesses cannot be discredited. 29. Learned counsel for the defence has further assailed the prosecution case on the ground that there is discrepancy in the time and date when the site was inspected. From this discrepancy, learned counsel for the defence has tried to show that the investigation was unfair. 30. Learned counsel for the State per contra argued that the inspection of the scene of occurrence is only relevant to judge whether the occurrence has taken place at the place alleged, beyond that it may roughly give such impressions which may be relevant to assist the investigation about the manner of occurrence. Thus, no adverse inference can be drawn in the present case on account of the alleged discrepancy and such discrepancy are, therefore, irrelevant. They have been tried to be blown out of proportion. 31. Learned counsel for the defence has further alleged that the recoveries pressed into service against the accused Dilip Singh is fake. The pent has been recovered from an open place and the weapon of offence (Katar) has been recovered at the instance of Trivesh, therefore, they cannot be pressed into service against the accused Dilip Singh. The defence also tried to say that the FSL Report has not been produced but later on corrected itself when its attention was drawn that the FSL Report has been tendered into serviceand question has been asked to the accused in 313 Cr.P.C. statement. 32. Learned counsel for the State per contra said that Trivesh was identified by accused Dilip Singh to be the person to whom he gave weapon. On this information Trivesh was questioned. Trivesh further gave information and got the Katar recovered. Thus, that much of the information was given by Dilip Singh wherein Trivesh was identified. That much of the information given by Trivesh which led to the recovery of Katar is in fact admissible in evidence. Thus, the recoveries have been rightly pressed into service as the same have been found to be stained with human blood. 33. We have considered the rival submissions noted hereinabove and given our thoughtful consideration and have perused the record. 34. Ex.P/9 is the First Information Report. Thus, the recoveries have been rightly pressed into service as the same have been found to be stained with human blood. 33. We have considered the rival submissions noted hereinabove and given our thoughtful consideration and have perused the record. 34. Ex.P/9 is the First Information Report. From the perusal of the document itself, it is evident that it was recorded at 6.30 p.m. on 17.3.1997. It was produced in court on 18.3.1997. It was not sent to the Magistrate on 17th itself but then it was not the requirement of law that while the court is closed, the report should be sent to the Magistrate at his residence. Since the report has been sent to the Magistrate next morning, we feel that no illegality can be seen in this act of the prosecution. 35. The defence has tried to discredit the authenticity of the document by emphasising that PW-5 has said that a report was lodged at 8.30 p.m. in the Police Station. Narendra Sharma is not the signatory of the report (Ex.P/9). Mahendra Singh who is the signatory of the report (Ex.P/9) has said that he has lodged the report within one hour of the incidence and that comes to be the time recorded in the FIR itself. Witness Narendra Singh has not been shown in the report (Ex.P/9) as signatory. 36. It has not been got cleared by the defence that the report which Narendra Sharma is referring in his statement is the report (Ex.P/9). In his statement he has merely referred report and not the First Information Report. Thus, confusion is sought to be created by his statement. A non-signatory of FIR, will then not be considered to be a safe person to discredit the FIR. A vague statement has been relied to discredit the FIR. In this background, it is not considered safe from the circumstances brought on record by the defence to conclude that the FIR was not the document which can be said to be a genuine document. 37. Another argument raised on behalf of the defence is about the veracity of the eye-witnesses. Eye-witnesses have been sought to be discredited on the ground that they have not been able to tell about the colour of the cloths of the accused persons. Another aspect which has been emphasised is their failure to describe the weapon of offence. These two facts are mandane details. Eye-witnesses have been sought to be discredited on the ground that they have not been able to tell about the colour of the cloths of the accused persons. Another aspect which has been emphasised is their failure to describe the weapon of offence. These two facts are mandane details. They can hardly be used to discredit the version of the eye-witness, who has seen the commission of the crime. A detailed description has been given by the eye-witnesses. It does not show any fundamental weakness. The accused and the witnesses had a confrontation on a day earlier. The incident has taken place in the background that the accused persons were told to abstain from eve-teasing. In their bravado which was acquired by them while going to Zym to gain their muscles. They did not care. The attitude of accused has been the one where they have assumed that they can control the surroundings. PW-16 Chandra Kala has given a history of engagement of eve-teasing by these persons. Thus, there was an element of misuse of muscles gained by these accused persons. 38. Pramod who was directly affected, being the brother of the girl, tried to persuade the accused through good offices of Mahendra Singh and the deceased. On being enraged by it, these two accused persons made a murderous assault on him. This story in its basic dimensions has been deposed by PW-5 Narendra Sharma, PW-6 Pramod Sharma and PW-9 Mahendra Singh Rathore. In cross-examination the basic story has not been shaken and thus, it cannot be said that the eye-witnesses have any such latent or patent weakness by virtue of which the story given by them deserves to be discredited. 39. The defence attempt to discredit them on mandane failures indicate failure of defence to have a sound ground to get them disbelieved. If the eye-witnesses have not correctly deposed about the colour of the cloths of the accused person then on such a detail being not given, basic story cannot be doubted. Failure to describe the weapon of offence cannot be considered to be good enough to discard the testimony of eye-witnesses. The trial court has also not given any credence to such criticism. We feel rightly so. 40. The testimony of the eye-witnesses, therefore, cannot be discredited on the grounds on which it is sought to be discredited. The medical report clearly state of the injuries. The trial court has also not given any credence to such criticism. We feel rightly so. 40. The testimony of the eye-witnesses, therefore, cannot be discredited on the grounds on which it is sought to be discredited. The medical report clearly state of the injuries. The defence suggestion to the doctor that possibly there were two weapons of offence has been used, has been agreed by the doctor. The trial court has not given any weight to such opinion of the doctor because that was not based on stastical support, it was a mere expression of opinion out of the blues. Thus, we fell that the trial court has committed no mistake on that count also. 41. On the recovered articles, human blood has been found, that lends sufficient corroboration. The pent has been recovered on the information and at the instance of accused Mahendra Singh @ Goga. The weapon of offence has been recovered from Trivesh. The identity of Trivesh was disclosed by Mahendra Singh in his information. Thus, such information which has led to the disclosure of the fact of Trivesh being in possession of Katar and the Katar having been recovered at the instance and information of Trivesh the informations to that extent rendered by Mahendra Singh and Trivesh are admissible. Thus, the recoveries have rightly been pressed into service. They have been found to be stained with human blood and has been held to be a sufficient corroborative circumstance in favour of the prosecution. The prosecution has thus succeeded in establishing that a murderous assault was made by accused Dilip Singh with the aid and actual help of Mahendra Singh @ Goga whereby he caught hold of the deceased Narpat Singh and facilitated the assault on the deceased and ultimately the elimination of the deceased Narpat Singh. 42. The description of the evidence made hereinabove and on considering the arguments advanced at the behest of defence is not found sufficient to discard the basic story of the prosecution. The accused appellants have on the previous day of the occurrence engaged in a quarrel with the prosecution witnesses. 42. The description of the evidence made hereinabove and on considering the arguments advanced at the behest of defence is not found sufficient to discard the basic story of the prosecution. The accused appellants have on the previous day of the occurrence engaged in a quarrel with the prosecution witnesses. On the day of occurrence they had shown their intentions that an act is committee pursuant to a pronounced hostile attitude and is executed in the fashion where one accused caught hold of the deceased and other inflicts multiple injuries resulting into the elimination of the victim, it cannot be said that both had not shared common intentions of causing injuries on the person of Narpat Singh by Mahendra Singh also shows that he had very intention to be an integral part in the process of show force. Thus, we are persuaded to hold that both the accused persons had shared a common intention to eliminate Narpat Singh and consequently executing the intention. Their engagement in eve-teasing has been deposed by the witnesses and thus their conviction under Section 509 I P.C. is not the one which can be said to be without any foundation. Thus, the offences proved against the accused persons by the trial court cannot be said to be unsupported by the material on record and consequently we uphold the conviction and sentence passed against the accused persons. There is no force in the appeals. The appeals are, therefore, dismissed.Appeal Dismissed - Conviction Upheld. *******