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Rajasthan High Court · body

2003 DIGILAW 915 (RAJ)

Sher Singh v. State of Rajasthan

2003-07-04

KHEM CHAND SHARMA, SHIV KUMAR SHARMA

body2003
Honble KHEM CHAND SHARMA, J.–This appeal under Section 374 Cr.P.C. arises out of the judgment and order dated 1.9.1998 passed by the learned Sessions Judge, Alwar, convicting the appellant under Section 302 IPC and sentencing him to undergo imprisonment for life and a fine of Rs. one thousand, in default of payment of fine, to further undergo simple imprisonment for six months. (2). Succinctly stated the facts of the case are that on 1.1.1995 at 8.15 AM, PW 10 Ramesh Chand Jat lodged a written report, Ex.P.14 at Police Station, M.I.A., Alwar, alleging therein that on 30.12.1994 at about 7.30 PM appellant Sher Singh and one more person switched off the engine installed at the tube-well of Girraj. It was alleged that when Girraj left the field and was on way to his house, appellant Sher Singh and one more person made Girraj to stop in the field of Pooran and made an assault on him with Farshi and Sword. Girraj fled away and reached his house. Thereafter in the morning of 31.12.1994, five persons of the village collected with a view to get the compromise done between the parties. At about 7.00 AM, Pooran, younger brother of informant Ramesh was asked to go and make enquiries from Khubaram as regards irrigation of the fields. Pooran, in turn proceeded towards the house of Khubaram and soon he reached infront of the room of Khubaram, accused appellant Sher Singh and co-accused Banwari, Rajjan, Girraj and Tejram came there with an intention to kill Pooran. Appellant Sher Singh fired at Pooran, the bullet of which hit on his chest. The cires of Pooran attracted the attention of the informant, who reached the place of incident. Other persons of the village had also reached there. According to the report, co-accused Banwari had a gun, while others had lathies and farshies. On seeing the informant and the villagers, the accused ran away. Injured Pooran was removed to the hospital at Alwar in a Tractor. (3). On the basis of above written report, police registered a case for offence under Section 147, 148, 149 and 307 IPC vide FIR, Ex.P.16 and proceeded with investigation. The SHO of the concerned Police Station reached the Hospital at Alwar, where he found that Pooran has succumbed to his injuries. (3). On the basis of above written report, police registered a case for offence under Section 147, 148, 149 and 307 IPC vide FIR, Ex.P.16 and proceeded with investigation. The SHO of the concerned Police Station reached the Hospital at Alwar, where he found that Pooran has succumbed to his injuries. In the course of investigation, the Investigation Officer prepared the inquest report, Ex.P.1 of the dead body and got conducted autopsy on the dead body and collected the post mortem report Ex.P.10. In the opinion of PW 7 Dr. Raj Kumar who conducted autopsy on the dead body, the cause of deaths was injury to vital organs lungs and aorta haemorrhage and shock as a result of fire arm, antimortem in nature. He found following injuries on the dead body: 1. Clotted blood and palets present in muscles of chest and on both side chest and abdomen, 2. Multiple small wounds present on both lungs upper and medial part clotted with blood mixed fluid present in chest cavity more on left side, and 3. Multiple small wound present on upper part of aorta. (4). On the same day of incident, the Investigating Officer visited the site and prepared site plan, Ex.P.7. Accused appellant Sher Singh was arrested on the same day vide arrest memo Ex.P.4. Appellant furnished information (Ex.P.17) under Sec. 27 of the Evidence Act as regards recovery of Deshi Katta, one cartridge of 12 bore and one empty cartridge of 12 bore. Pursuant to this information, the police recovered the above articles vide memo Ex.P.8 and prepared site plan, Ex.P.9 of the place of recovery. The cloths worn by the deceased at the time of incident and the pallets taken out by the doctor were seized vide memo Ex.P.19. The police then sent the Baniyan, Kameej, Deshi Katta 12 bore, live cartridge 12 bore and empty cartridge 12 bore to the Forensic Science Laboratory. The report of Forensic Science Laboratory is Ex.CW.1. (5). Having completed investigation, the police submitted charge sheet against the appellant and other co-accused persons in the court of Additional Chief Judicial Magistrate No. 1, Alwar. The learned Magistrate having found the offence exclusively triable by the court of Sessions, committed the case to the court of Sessions. (6). The report of Forensic Science Laboratory is Ex.CW.1. (5). Having completed investigation, the police submitted charge sheet against the appellant and other co-accused persons in the court of Additional Chief Judicial Magistrate No. 1, Alwar. The learned Magistrate having found the offence exclusively triable by the court of Sessions, committed the case to the court of Sessions. (6). The learned Sessions Judge, on the basis of evidence and material collected during investigation and after hearing counsel for the parties, framed charges against the accused appellant under Sections 302 and 148 IPC and Sec. 3/25 of the Arms Act. Likewise, coaccused were also charged under Sections 148 and 302 read with Sec. 149 IPC. All the accused denied the charges and claimed to be tried. (7). In the course of trial, the prosecution examined as many as 12 witnesses and got exhibited number of documents. The statements of CW1 Prem Sagar Manocha and CW2 Shanti Lal were also recorded. Thereafter the accused were examined under Section 313 Cr.P.C. In his explanation, accused appellant Sher Singh stated that it was deceased Pooran himself who had come to his house in his absence with a view to kill him. His brother, brothers wife and his mother were present there. He explained that his brother tried to snatch the Katta from Pooran and in the course of entanglement, gun fired. In defence, the accused examined DW 1 Charan Singh, DW 2 Smt. Kallo, DW 3 Mst. Channo, DW 4 Net Ram and DW 5 Smt. Laxmi Devi. (8). It may be stated that at the fake end of trial, co-accused Banwari passed away and therefore, the learned trial Judge dropped the proceedings as against Banwari. (9). At the conclusion of trial, the learned Sessions Judge did not find the charges established against the co-accused and accordingly acquitted them of the charges. The learned Sessions Judge concluded that the prosecution has not been able to establish charges against appellant Sher Singh under Sections 148 IPC and Sec. 3/25 of the Arms Act and accordingly acquitted him of these charges. However, the learned Sessions Judge found the accused appellant guilty of having committed murder of Pooran and accordingly convicted and sentenced him in the manner stated hereinabove. Hence the present appeal by appellant Sher Singh against his conviction and sentence. (10). However, the learned Sessions Judge found the accused appellant guilty of having committed murder of Pooran and accordingly convicted and sentenced him in the manner stated hereinabove. Hence the present appeal by appellant Sher Singh against his conviction and sentence. (10). We have heard learned counsel for the parties and have gone through the impugned judgment and the evidence and material on record. (11). The prosecution has examined PW 1 Girraj, PW 2 Shiv Charan, PW 3 Mohan Singh, PW 4 Bhoop Singh and PW 10 Ramesh as eye witnesses of the incident. Out of above five eye witnesses, the learned trial court did not place reliance upon the testimony of three witnesses, namely Girraj, Shiv Charan and Mohan Singh for the reasons assigned in para 5 of the impugned judgment. We do not feel necessary to repeat the reasons recorded by the trial Judge in rejecting the testimony of above three witnesses. It appears from the impugned judgment that the trial court has partly relied upon the testimony of PW 4 Bhoop Singh for arriving at a conclusion that it was appellant Sher Singh who fired `Katta at the chest of deceased Pooran. In doing so, the learned trial court also relied upon the statement of another eye witness Ramesh (PW 10) to the effect that Ramesh saw appellant Sher Singh running away, duly armed with `Katta from the place of incident. The reasons for believing the statements of PW 4 Bhoop Singh and PW 10 Ramesh in part so as to arrive at a conclusion of guilt have been recorded in para Nos. 17 and 18 of the impugned judgment. The trial court has also recorded the reasons for disbelieving the statements of above eye witnesses as regards other accused persons in above referred paras. (12). PW 4 Bhoop Singh is the son of Girraj and brother of deceased Pooran. While appreciating his evidence, the trial court has kept in mind that evidence of such a witness should be scrutinized with care and caution. Mere fact that witness is a close relation of the deceased is no ground to discard his testimony. Like-wise, it also cannot be a ground for disbelieving the testimony of a witness that his name does not find place in the first information report. Mere fact that witness is a close relation of the deceased is no ground to discard his testimony. Like-wise, it also cannot be a ground for disbelieving the testimony of a witness that his name does not find place in the first information report. That fact that witness Bhoop Singh was a boy of hardly 13-14 years must have prevailed with the author of the report in not mentioning his name in the FIR and/or the informant was disturbed for the obvious reason that his brother deceased Pooran had sustained gun shot injury on his chest. He was removed to hospital and his condition was precarious. The investigating officer had prepared the site plan after few hours of the incident and in the site plan he has described the place from where witness Bhoop Singh had witnessed the incident. That apart, the I.O. had recorded the statement of Bhoop Singh under Sec. 161 Cr.P.C. on the same day. In this view of the matter the trial court ruled out the possibility of Bhoop Singh was designed as an eye witness in a planned and calculated manner. We have also scanned the evidence of Bhoop Singh. He has categorically deposed that he was already present on the way and had seen appellant Sher Singh firing Katta at the chest of Pooran. To this effect, the trial court has believed the statement of witness Bhoop Singh. (13). All the accused persons including appellant Sher Singh are members of one family. Accused Banwari is the father of appellant, while accused Girraj and Tejram are his uncle and accused Rajjan is his cousin. The trial court recorded a finding that this being the reason, the possibility of false implication of above named accused cannot be ruled out. PW 4 Bhoop Singh has also stated the presence of above mentioned four accused persons duly armed with weapons, at the time and place of incident, along with appellant Sher Singh. Accused Banwari had a gun, while Girraj and Rajan had `farshas and Tej Ram had lathi in his hand. It has not come in the evidence of Bhoop Singh that accused Banwari had also fired at Pooran or that other three accused assaulted the deceased with their respective weapons. Accused Banwari had a gun, while Girraj and Rajan had `farshas and Tej Ram had lathi in his hand. It has not come in the evidence of Bhoop Singh that accused Banwari had also fired at Pooran or that other three accused assaulted the deceased with their respective weapons. In these circumstances, the trial court was of the view that statement of PW 4 Bhoop Singh to the extent that he saw appellant Sher Singh firing Katta at the chest of Pooran inspire confidence. The trial court rejected the defence plea that Bhoop Singh is not a witness of sterling worth, inasmuch as the witness has stated the date of incident, whereas he could not state his date of birth. The trial court was of the view that only on this basis, his partly accepted statement that he had seen appellant Sher Singh firting Katta at the chest of Pooran cannot be disbelieved. The trial court also ignored minor contradiction in his police statement and the court statement. (14). Having gone through the impugned judgment, in particular the reasons assigned by the trial court, as discussed above, and the evidence of PW 4 Bhoop Singh, we are firmly of the view that the trial court was correct in believing the statement of this witness partly to the extent that he had seen the appellant firing `Katta at the chest of Pooran. We also concur with the trial courts view that in India there is tendency that generally truth is spoken exaggerately or the truth/fact is overstated and some times truth is tried to be proved by false statement. We thus hold that mere fact that the evidence of PW 4 Bhoop Singh has not been believed by the trial court as regards four accused persons who have been acquitted of the charges does not mean that his evidence as regards the accused appellant should also be rejected: What can be said is that PW 4 Bhhop Singh has tried to exaggerate the truth. (15). As stated above, there is one more witness namely PW 10 Ramesh, author of the FIR, whose statement has been believed in part as against the appellant, in arriving at a conclusion of guilt. This witness is brother of the deceased and he rushed to the place of incident on hearing cries. (15). As stated above, there is one more witness namely PW 10 Ramesh, author of the FIR, whose statement has been believed in part as against the appellant, in arriving at a conclusion of guilt. This witness is brother of the deceased and he rushed to the place of incident on hearing cries. According to this witness, he saw appellant Sher Singh firing `Katta at Pooran, the bullet of which hit on the chest of Pooran and at that time he was at some distance. Accused Banwari, Girraj, Tej Ram and Rajjan duly armed with weapons were also present along with appellant Sher Singh. According to this witness, the accused persons escaped from the scene soon after he reached near Pooran. The trial court disbelieved the statement of this witness to the extent that other accused were also there along with appellant Sher Singh and he saw appellant Sher Singh firing `Katta at Pooran. However, the trial court believed the statement of this witness to the extent that he saw appellant Sher Singh running from the place of incident and that Sher Singh had a `Katta in his hand. As per the statement of Investigating Officer the house of witness Ramesh is situated at some distance. Witness Ramesh himself has deposed that his house is situated at the distance of 60-65 meters from the place of incident. While evaluating the evidence of PW 10 Ramesh, the trial court has referred the statement of PW 4 Bhoop Singh in cross examination, wherein Bhoop Singh could not explain the distance between his house and the `Bada of Khoob Ram as there are lanes between the two. Thus, in the light of the above evidence, the trial court came to the conclusion that that PW 10 Ramesh arrived at the place of incident only on hearing the sound of `Katta firing and he could see accused appellant Sher Singh running from the place of incident, armed with a `Katta. In doing so, the trial court placed reliance on the FIR, Ex.P/14 which was lodged by none other than Ramesh himself. In the FIR, the witness has mentioned that he reached the place of incident on hearing the cries of Pooran after he was struck by bullet. In doing so, the trial court placed reliance on the FIR, Ex.P/14 which was lodged by none other than Ramesh himself. In the FIR, the witness has mentioned that he reached the place of incident on hearing the cries of Pooran after he was struck by bullet. On the same analogy, the trial court held that merely because PW 10 Ramesh happens to be the brother of deceased, his statement to the extent that he saw running the appellant from the place of incident and at that time Sher Singh had a `Katta in his hand. (16). In the above back-ground, learned counsel for the accused appellant has vehemently contended that the learned trial court has committed serious error of law and fact in basing conviction of the appellant solely on the part evidence of PW 4 Bhoop Singh and PW 10 Ramesh, more particularly when the evidence of these two witnesses in regard to four other accused was rejected by the trial court. It was argued that once the evidence of these two witnesses has been disbelieved as regards participation of other four accused persons, who were acquitted by the trial court, it cannot be accepted so far as the role assigned to the appellant is concerned. In support of his argument, learned counsel for the appellant has relied upon a decision of the Apex Court in Prem Singh vs. State of Punjab (1), wherein their Lordships have held has under: ``. . . Now, if the evidence of these two witness was disbelieved by both the lower courts in regard to participation by the four other accused in the incident, it is difficult to see how it could be accepted so far as the role assigned to the appellant is concerned. The conviction of the appellant is founded solely on the evidence of these two witnesses whose testimony cannot be said to inspire confidence in the mind of the court. Moreover, it is interesting to note that though according to the evidence of Sadhu Singh, there were two teachers present at the time of the incident, who could have given evidence as independent witnesses, neither of them was examined by the prosecution. The prosecution chose to rest its case entirely on the evidence of Sadhu Singh and Gurnam Singh, who were brothers of Satnam Singh. The prosecution chose to rest its case entirely on the evidence of Sadhu Singh and Gurnam Singh, who were brothers of Satnam Singh. We do not think it safe to convict the appellant on the basis of evidence of Sadhu Singh and Gurnam. (17). Apart from above, in the above cited case, their Lordships of the Supreme Court further noted some distinguishing features. Their Lordships observed that it is interesting to note that though, according to the evidence of Sadhu Singh, there were two teachers present at the time of the incident, who could have given evidence as independent witness, neither of them was examined by the prosecution. The prosecution chose to rest its case entirely on the evidence of Sadhu Singh and Gurnam Singh, who were brothers of Satnam Singh. In these circumstances, their Lordships held that ``we do not think it safe to convict the appellant on the basis of evidence of Sadhu Singh and Gurnam Singh alone. Therefore, in the case at hand, the fact situation being entirely different than those involved in Prem Singhs case (supra), it is of no help to the appellant. (18). We have considered the above argument and have gone through the case law cited at the bar. We are not convicted with the above argument that evidence of a particular witness if disbelieved as regards some accused, it would not be safe to rely the same evidence as regards participation of some other accused in the commission of crime. Prior to the judgment in Prem Singhs case (supra), relied upon by the counsel for the appellant, the Honble Supreme Court had taken a contrary view in Jagdeep Singh vs. State of Haryana (2). It appears to us that the earlier judgment was not brought to the notice of their Lordships while deciding the later case. In Jagdeep Singhs case, their Lordships while dealing with the arguments on similar fact situation have held as under: ``Learned counsel appearing on behalf of the appellants urges that the evidence of these two witnesses was not believed by either court in regard to Har Singh and Jit Singh who were acquitted and therefore the evidence must be discarded as against the appellants also. Hari Singh and Jit Singh had no motive against the deceased Gurbachan Singh and the Sessions Court held that the case was not proved against them beyond a reasonable doubt because there were material contradictions in the evidence of the two witnesses as regards the part played by them. That does not mean that the evidence as regards the participation of the appellants must also be rejected. (19). Recently in Rizan vs. State of Chhatishgarh (3), their Lordships of the Supreme Court after considering the law laid down in series of cases reported in AIR 1957 SC 366 (4), AIR 1956 SC 460 (5), (1972) 3 SCC 751 (6), AIR 1965 SC 227 (7), AIR 1954 SC 15 (8), (1975) 4 SCC 511 (9), (1981) 2 SCC 752 (10), (2002) 6 SCC 81 (11), and (2002) 8 SCC 381 (12), have held as under: ``Stress was laid by the accused appellants on the non- acceptance of evidence tendered by some witnesses to contend about desirability to throw out the entire prosecution case. In essence, a prayer is to apply the principle of falsus in uno falsus in omnibus (false in one thing, false in everything). This plea is clearly untenable. Even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where the chaff can be separate from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of a particular material witness or material particular would not run it from the beginning to end. The maxim falsus in uno falsus in omnibus has no application in India and the witness cannot be branded as liars. The maxim falsus in uno falsus in omnibus has not received general acceptance nor has this maxim come to occupy the status of a rule of law. (20). The maxim falsus in uno falsus in omnibus has no application in India and the witness cannot be branded as liars. The maxim falsus in uno falsus in omnibus has not received general acceptance nor has this maxim come to occupy the status of a rule of law. (20). For the reasons aforesaid, the argument of the learned counsel for the appellant that the principle of falsus in uno falsus in omnibus is untenable as this principle has not received general acceptance nor this maxim has come to occupy the status of a rule of law. Therefore the mere fact that the evidence of two eye witnesses, namely, PW 4 Bhoop Singh and PW 10 Ramesh has not been believed by the learned trial court as regards four other accused who have been acquitted of the charges, does not mean that their evidence as regards appellant Sher Singh must be rejected. In our considered view, the trial court was fully justified, after critically analysing the evidence of two eye witnesses, in believing their evidence to convict the accused appellant. (21). Learned counsel for the appellant then contended that the trial court has further committed serious error in not believing the evidence adduced in defence. He strenuously argued that from the evidence adduced on behalf of the defence it stands fully proved that it was deceased Pooran who visited the house of appellant Sher Singh in his absence and at that time Pooran had a `Katta in his hand. He abused the mother and wife of appellant Sher Singh. In the meantime, as per defence evidence, Charan Singh, brother of the appellant tried to snatch the Katta from deceased Pooran and in the course of scuffle, the said Katta was fired which hit on the chest of deceased Pooran. According to the learned counsel this incident was witnessed by Mst. Kallo mother of the appellant, Mst. Channo wife of the appellant and one Mst. Laxmi Devi, Sarpanch of the Gram Panchayat. Referring the statement, in particular the statement made in cross examination by the doctor who conducted autopsy, learned counsel argued that it stands proved that the injury found on the chest of deceased could be the cause of fire arm fired at a distance of about 3 feet in the course of scuffle. (22). Referring the statement, in particular the statement made in cross examination by the doctor who conducted autopsy, learned counsel argued that it stands proved that the injury found on the chest of deceased could be the cause of fire arm fired at a distance of about 3 feet in the course of scuffle. (22). We have given our earnest consideration to the above argument and have scrutinized the evidence of DW 1 Charan Singh, DW 2 Mst. Kallo, DW 3 Mst. Chhani and DW 5 Mst. Laxmi Devi. In our considered view the evidence of these four witnesses adduced in defence cannot be said to be reliable, inasmuch as there are material contradictions in the statements of these witnesses. DW 1 Charan Singh has deposed that on 1.1.95 at 7.00 AM, deceased Pooran was drunken and had come to his house having Katta in his hand and he abused his mother and Bhabhi. At that time, he was sleeping. He awakened and soon he caught the bazzle of `katta, Pooran fell down and the bullet hit on his chest. According to this witness, his mother, Bhabhi and Mst. Laxmi Devi arrived there after firing. On the contrary, DW 2 Mst. Kallo mother of Charan Singh has deposed that when Pooran came to their house, she and her daughter-in-law first met Pooran and Charan Singh came later. According to Mst. Kallu Charan Singh come there on hearing her cries. She and her daughter in law came out of the house and asked Pooran as to why he was abusing. Thereafter Pooran had come there. Likewise, DW 5 Mst. Laxmi Devi has, in the first instance, deposed that she does not know as to what Pooran was doing. Then she stated that she had called Mst. Kallo and Mst. Chhani, mother and wife of Sher Singh at that place later on. In these circumstances, keeping in mind the contradictions in between the statements of Charan Singh, Mst. Kallo and Mst. Chhani, we find it difficult to place reliance on their evidence. Similarly, in view of the statement of Mst. Laxmi Devi referred to above, her statement to the effect that she saw scuffle between Charan Singh and Pooran, the bullet had struck on the chest of Pooran and that Pooran also had a `Katta in his hand, cannot at all be believed. Similarly, in view of the statement of Mst. Laxmi Devi referred to above, her statement to the effect that she saw scuffle between Charan Singh and Pooran, the bullet had struck on the chest of Pooran and that Pooran also had a `Katta in his hand, cannot at all be believed. Even according to this witness she has stated in her cross examination that she had reported this incident to the police. However, we do not find any such report having been filed in defence. That apart, DW 1 Charan Singh has admitted that he did not report the matter to the police at the time when police arrived there nor he disclosed about this incident to any body. For this reason also, the statement of DW 1 Charan Singh is not worthy of reliance. It may also be noted that had the incident taken place opposite the house of appellant Sher Singh, the Katta much have been in possession of Charan Singh and Charan could have produced the katta to the police along with the report. (23). For these reasons recorded above, the evidence adduced in defence is unworthy of reliance and cannot be believed. Hence the above argument of the learned counsel for the appellant stands rejected. (24). In the result, the appeal fails and is hereby dismissed. The judgment of the learned trial court thereby convicting and sentencing appellant Sher Singh under Section 302 IPC is maintained.