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2002 DIGILAW 681 (RAJ)

Amar Singh v. State of Rajasthan

2002-04-01

FATEH CHAND BANSAL, SHIV KUMAR SHARMA

body2002
JUDGMENT 1. The instant appeal stem from the judgment dated February 21, 1997, rendered by additional Sessions Judge, Deeg District Bharatpur in Sessions Case No. 75/1990 (24/95) convicting the appellant under section 302 read with 34, 323 and 201 IPC to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer one month simple imprisonment, under section 323 to suffer simple imprisonment and fine of Rs. 200/- in default to further undergo 15 days simple imprisonment and under section 201 of the IPC to undergo 3 years simple imprisonment and fine of Rs. 300/- in default to further suffer one month simple imprisonment. All the sentences were directed to run concurrently. 2. The incident giving rise to this appeal alleged to have been occurred on July 10,1990, as per the - written report have been occurred on July 10,1990, as per the written report Ex.P/1 instituted by Maya Kaur PW/1. It was interalia stated in the report that around 3.30 PM when she along with her brother Balbir Singh was going to Village Barbada, they found. just ahead of Village Lavan, appellant Amar Singh, Dhanna Singh, Bood Singh and Pyar Singh, who obstructed their way. Dhanna Singh was armed with 'Pharsi' whereas others were having 'lathis'. They had a scuffle with his brother and they instigated each other to kill him without paying any heed to her request to spare her brother. Her brother died at the spot. His dead body was dragged by them to another field. This incident had been witnessed by Arjan Singh son of Shri Rana Singh and Arjan Singh son of Shri Jawahar Singh. Police Station Sikari registered a case under section 302 IPC and chalked a formal FIR No. 79/1990 (Ex.P/2). Dead body of Balbir Singh was subjected to autopsy vide (Ex.P/6), according to which the deceased sustained as many as 12 injuries, which are as under : (i) Incised wound size 8 cm. X 1 cm. X bone deep on the left partial temporal region of scalp by sharp ante mortem. (ii) Incised wound size 5 cm. X 1 cm. X bone deep on the scalp of right parital region by sharp ante mortem. (iii) Incised wound 6 cm. X 1 cm. X bone deep on the scalp of right parital temporal region by short Ante mortem. (iv) Incised wound size 7 cm. X 3/4 cm. (ii) Incised wound size 5 cm. X 1 cm. X bone deep on the scalp of right parital region by sharp ante mortem. (iii) Incised wound 6 cm. X 1 cm. X bone deep on the scalp of right parital temporal region by short Ante mortem. (iv) Incised wound size 7 cm. X 3/4 cm. X bone deep on. the scalp of back region of right parital region by sharp Ante mortem. (v) Abrasion-4 cm. X 3 cm. on the right side or head by blunt-Ante mortem. (vi) Lacerated wound-1.5 cm. X 1 /2 cm. X bone deep, brain 6 cm. X3 cm. On the left chuck, by blunt-Ante mortem. (vii) Lacerated wound-1.5 cm. X 1 /2 cm. X bone deep on the left eye brow, by blunt-Ante mortem. (viii) Abrasion 2 cm. X 1.5 cm. on the left chuck by blunt, Ante mortem. (ix) lacerated wound 4 cm. X3 cm. X bone deep, by blunt, on the right arm, antina aspect fractured humorous (rt.) coming out from wound Ante-mortem. (x) Lacerated wound 1.5 cm. X 1 /2 cm. X skin deep on the prdytis laterol aspect of left for arm. By blunt. Ante mortem. (xi) Bruise 6 cm. X 2 cm. on the left side of neck by blunt, Ante mortem. (xii) Bruise 7 cm. X2 cm. on the right side of chest by blunt. Ante mortem. 3. The death of Balbir was caused on account of hemorrhage and shock, as a result of injuries. The Investigating Officer drew inquest report. Site.plan was also drawn. Statements of witnesses under section 161 of the Code of Criminal Procedure were recorded. Appellant was arrested and at his instance Lathi was recovered. On conclusion of the investigation chargesheet was laid only against the appellant Amar Singh and Dhanna Singh and the investigation against Bood Singh and Pyar Singh was kept pending under section 173(8) Cr.RC. In due course case came up for trial before the learned Addl. Sessions Judge, Deeg. Charges, under section 302, 302/34 and 201 IPC were framed against the appellant, who denied the charges and claimed to be tried. During the pendency of the case Dhanna Singh absconded and after drawing the proceedings under sections 82 and 83 Cr.P.C., standing warrant was issued against' Dhanna Singh and the trial against the appellant proceeded. The prosecution examined as many as 9 witnesses in support of its case. During the pendency of the case Dhanna Singh absconded and after drawing the proceedings under sections 82 and 83 Cr.P.C., standing warrant was issued against' Dhanna Singh and the trial against the appellant proceeded. The prosecution examined as many as 9 witnesses in support of its case. In the explanation under section 313 Cr.PC. the appellant claimed innocence. No witness in defence however, was examined. On hearing the final submissions the learned trial court convicted and sentenced the appellant as indicated hereinabove. 4. To substantiate the charges levelled against the appellant the prosecution primarily relied on the statement of Maya Kaur (PW/1). Other eye-witnesses named in the FIR-Arjan Singh son of Rana Singh PW/3 and Arjan Singh son of Jawahar Singh PW/4, did not support the prosecution story and were declared hostile. 5. In her deposition Maya Kaur (PW/1) attributed injury on right arm of the deceased to the appellant Amar Singh. She was subjected to searching cross examination wherein she stated that in the written report (Ex.P-1) as well as in her statement under section 161 Cr.PC. (Ex.D/1) she had specified the role assigned to the appellant Amar Singh who inflicted lathi blow on the right hand of deceased but could not say as the why the scribe of the written report and the Police did not mention this fact in the said documents. Lathi which was recovered at the instance of the appellant vide (Ex.P/15), was not stained with blood. 6. With the assistance the learned counsel appearing for the appellant as well as learned PP, we have closely scrutinised entire material on record and have given our anxious consideration to the rival submissions. 7. We find following salient features after scrutinising the evidence adduced by the prosecution : (i) no specific role was assigned to the appellant in the written report. 7. We find following salient features after scrutinising the evidence adduced by the prosecution : (i) no specific role was assigned to the appellant in the written report. There is only a vague allegation of making assault against him; (ii) In the police statement Ex.D/1 too, Maya kaur did not assign any specific role to the appellant; (iii) Maya Kaur is the real sister of the deceased Neither she sustained any injury nor she made any attempt to intervene; (iv) The testimony of Maya Kaur has not been supported by independent witnesses Arjan Singh son of Rana Singh (PW/3) and Arjan Singh son of Jawahar Singh (PW/4); (v) Maya Kaur in her written report stated that the dead body of Balbir was lying in the field whereas according to Daulat Singh, Investigating Officer, the dead body of Balbir was recovered from a well; 8. Having considered the submissions advanced before us we find that true genesis of the occurrence has not been placed before the court by the prosecution. The testimony of Maya Kaur PW/1 is not of sterling worth and wholly unreliable qua the appellant Amar Singh. As already noticed, recovery of lathi does not connect the appellant in any way with the crime and the prosecution has failed to substantiate this fact that the lathi alleged to have been recovered at the instance of the appellant, was used in commission of the offence. Gurjeet Singh (PW/2) was produced by the prosecution to establish this fact that he had seen Dhanna Singh, Bood Singh, Amar Singh and Pyar Singh, carrying the dead body of Balbir Singh. Gurjeet Singh is the real brother of the deceased, his statement under section 161 Cr.PC. was recorded on July 14, 1990, i.e. after 4 days of the incident but he offered no explanation as to why on seeing the accused carrying the dead body of his brother he kept mum and did not inform the Police. instantly about the incident. In his cross examination he stated that he was called by the SHO and he himself did not go to the Police. We find conduct of Gurjeet Singh as highly unnatural. It appears that being real brother of the deceased he has indulged in making deliberate lies. 9. In view of what we have discussed hereinabove we have no option but to allow the appeal of the appellant. The appeal stands allowed. We find conduct of Gurjeet Singh as highly unnatural. It appears that being real brother of the deceased he has indulged in making deliberate lies. 9. In view of what we have discussed hereinabove we have no option but to allow the appeal of the appellant. The appeal stands allowed. The conviction of the appellant Amar Singh under section 302 read with section 34, 323 and 201 IPC shall stand set aside and he is acquitted from the said charges. The appellant Amar Singh is in Jail, he shall be released forthwith, if not required in any other case.Appeal allowed - Conviction set aside. *******