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2006 DIGILAW 1440 (RAJ)

Nahar Singh v. State of Rajasthan

2006-05-02

SHASHI KANT SHARMA, SHIV KUMAR SHARMA

body2006
Judgment S.K. Sharma, J.-These matters impugn the Judgment dated 23.03.2005 of Additional Sessions Judge (Fast Track) No. 2 Jhunjhunu in Sessions Case No. 31 of 2002, whereby the appellants Nahar Singh and Karanpal Singh have been convicted and sentenced as under:- Under Section 302/149, IPC: Each to suffer imprisonment for life and fine Rs. 500, in default to further suffer one month simple imprisonment. Under Section 147, IPC: Each to suffer simple imprisonment for one year and fine Rs. 100/-in default to further suffer seven days imprisonment. Petitioner Shakti Singh S/o Surjan Singh was convicted under Sections 147 and 302/149, IPC and was referred to be produced before Juvenile Justice Board, Jaipur for passing appropriate sentence. 2. It is the prosecution case that informant Latif Khan (PW. 1) submitted a written report with the police station Bisau on 22.02.2002 at 12.30 AM stating therein that on 21.02.2002 around 5 PM a telephone call was received from Hanuman Malis shop at Mehansar. It was divulged in the call that Sarpanch Mehansar had summoned Cheenu Khan (since deceased) at his shop. Upon receiving the said call Cheenu Khan went out of his house and the informant followed him. When he reached near Sarpanch Om Prakash Poddars shop at that point of time, from the front, Prabhu Singhs sons and five other persons with them surrounded informants father Cheenu Khan and assaulted him with hockey, belt and cricket sumps. When the informant raised hue and cry Yasin Khan and Maqbool came there and also started raising an alarm as also tried to save the father of informant. It was further alleged in the report that informants father suffered injuries on his both ears and head. His condition was precarious. It was further submitted that informants brother Zakir was not present there and, therefore, after informants brother came back they had approached for lodging the report. It was lastly stated in the report that Prabhu Singhs two sons as also five other persons had assaulted informants father Cheenu Khan with a common object to kill him. On the basis of aforesaid report a formal FIR No. 18 of 2002 was registered at Police Station Bisan for the offence under Sections 147, 341 and 323, IPC. The Investigating Agency embarked upon investigation of the impugned crime. On the basis of aforesaid report a formal FIR No. 18 of 2002 was registered at Police Station Bisan for the offence under Sections 147, 341 and 323, IPC. The Investigating Agency embarked upon investigation of the impugned crime. After due investigation charge sheet came to be filed against accused appellants as also co-accused Nand Kishore and Shakti Singh s/o Prabhu Singh for the offences under Sections 147, 341, 302/149 and 120-B, IPC. As against another accused Shakti Singh s/o Surjan Singh charge sheet was filed under Section 299, CrPC. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2 Jhunjhunu. Learned trial Judge came to the conclusion that if after due trial the said accused was found guilty his case would be remitted to the Juvenile Board. Charges under Sections 147, 302 in the alternate 302/149 and 120-B, IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 15 witnesses. In the explanation under Section 313, CrPC, the appellants claimed innocence. Three witnesses in defence were examined. On hearing final submissions learned trial Judge convicted and sentenced the appellants as indicated herein above. 3. We have heard the rival submissions and scanned the material on record. 4. It appears from the record that Cheenu Khan vide injury report (Exhibit P-3) received following injuries:- 1. Cuttingof left ear with lacerated wound 3 cm x 1cm x 1 cm above the mastoid process with swelling (L) tempo mandibular joint. 2. Abrasion on the forehead in mid line ½ cm x ½ cm 3. Lacerated wound on the face right side lateral and above the (R) Eye vertically placed size 1.5 cm x ½ cm x 1 cm (D) 4. Lacerated wound (R) side of face below 1 cm lateral canthus of (R) eye. 5. Lacerated wound left lower leg medially placed 12 cm above the ankle lt. side vertically placed 2 cm x ½ cm x ½ cm. 6. Bruise on the chest (R) side obliquely placed 3 cm below the nipple size 15 cm 3cm (B). Dr. P.K. Saini (PW. 15), who conducted autopsy on the dead body vide autopsy report (Exhibit P-22), deposed that the cause of death was coma due to ante mortem head injury 5. 6. Bruise on the chest (R) side obliquely placed 3 cm below the nipple size 15 cm 3cm (B). Dr. P.K. Saini (PW. 15), who conducted autopsy on the dead body vide autopsy report (Exhibit P-22), deposed that the cause of death was coma due to ante mortem head injury 5. It is contended by learned Senior Counsel appearing for the appellants that the FIR was lodged after the inordinate delay which makes it to be highly dubious. Latif Khan (PW. 1) is wholly unreliable witness. His testimony suffers from numerous in congruencies, which renders it to be highly doubtful. Other alleged eye-witnesses examined by the prosecution are also highly partisan in nature and their testimony, if jettison on the anvil of human probabilities and objective circumstances gets under a grave penumbra of doubt. The prosecution has deliberately dissuaded itself from producing independent witnesses of the vicinity, which lead to drawing an adverse inference against the prosecution. Brijendra Singh (PW. 3) has political enmity with appellant Nahar Singh, in such a situation, his testimony requires close and stringent scrutiny. It is lastly contended that even if the prosecution case is accepted as it is than also it does not travel beyond Section 304 Part-II IPC that too against the appellant Nahar Singh and other appellant and petitioner are entitled to benefit of doubt. 6. Per contra learned Counsel for the complainant and learned Public Prosecutor supported the impugned Judgment and took us through the evidence adduced at the trial to show that the charges against the assailants were established beyond reasonable doubt. 7. Having analysed the material on record, we notice that in the FIR the names of assailants were not disclosed, it was only stated that sons of Prabhu Singh and five other persons were the assailants. It also appears that Yasin Khan and Maqbool were named as eye-witnesses in the FIR, but Yasin Khan was not examined by the prosecution. Whereas Maqbool (PW. 2) disposed that on hearing that Cheenu Khan was given beating when he rushed to the spot he found that Cheenu Khan was lying on the ground having injuries on his head and Nahar Singh, two persons of the same name Shakti Singh and one Karanpal Singh were running. Bijendra (PW. Whereas Maqbool (PW. 2) disposed that on hearing that Cheenu Khan was given beating when he rushed to the spot he found that Cheenu Khan was lying on the ground having injuries on his head and Nahar Singh, two persons of the same name Shakti Singh and one Karanpal Singh were running. Bijendra (PW. 3) who was named in the FIR deposed that Nahar Singh, Shakti Singh s/o Prabhu Singh, Karanpal Singh, another Shakti Singh and Nand Kishore inflicted blows with hockey and sticks. Informant Latif (PW. 1) in his depotion stated that Nahar Singh inflicted blow with cricket bat on the head of Cheenu Khan. Habib Khan (PW. 4) although named the assailants but he did not specifically state that as to who caused injury and on which part of the body. 8. On a close scrutiny of the testimony of the eye-witnesses examined by the prosecution we find it consistent qua the appellant Nahar Singh only. So far as other accused are concerned the prosecution has failed to establish charges beyond reasonable doubt. The prosecution is not able to prove that the assailants assembled near the place of incident with a common object to kill Cheenu Khan. In these circumstances, we find ourselves unable to fasten vicarious criminal liability under Section 147 or 149, IPC on the assailants. The prosecution although appears to have withheld the origin and genesis of the occurrence, but looking to the fact that cricket bat was used in inflicting the injury, we are of the opinion that the incident occurred all of sudden and on a spur of moment. Since, Nahar Singh inflicted only one blow with cricket bat on the head of Cheenu Khan and did not repeat it and he did not behave in cruel or unusual manner, it can be presumed that Nahar Singh had knowledge that the blow inflicted by him was likely to cause death of Cheenu Khan, even though he had no intention of causing death or such bodily injury as is likely to cause death. Therefore, the appellant Nahar Singh is found guilty of the offence punishable under Part II of Section 304, IPC. We grant benefit of doubt to Karnapal Singh and Shakti Singh s/o Surjan Singh looking to the fact that they were not named in the FIR and evidence of eye-witnesses are not consistent against them. 9. Therefore, the appellant Nahar Singh is found guilty of the offence punishable under Part II of Section 304, IPC. We grant benefit of doubt to Karnapal Singh and Shakti Singh s/o Surjan Singh looking to the fact that they were not named in the FIR and evidence of eye-witnesses are not consistent against them. 9. For these reasons, we dispose of the instant matters in the following terms:- 1. Wepartly allow the appeal of appellant Nahar Singh and instead of Section 302/149, IPC we convict him under Section 304 Part II, IPC. Appellant Nahar Singh has already undergone confinement for a period of about four years and three months, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. The appellant Nahar Singh, who is in jail, shall be set at liberty forthwith, if not required to be detained, in any other case. We however acquit the appellant Nahar Singh of the charge under Section 147, IPC. (ii) We allow the appeal of appellant Karanpal Singh and acquit him of the charges under Sections 147 and 302/149, IPC. Appellant Karanpal Singh is on bail, he need not surrender and his bail bonds stand discharged. (iii) Weallow the revision petition of petitioner Shakti Singh s/o Surjan Singh and acquit him of the charges under Sections 147 and 302/149, IPC. Petitioner Shakti Singh s/o Surjan Singh is on bail, he need not surrender and his bail bonds stand discharged. (iv) The impugned Judgment of learned trial Judge stands modified as indicated above.