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2007 DIGILAW 1164 (RAJ)

Mitthan Lal v. State of Rajasthan

2007-05-31

GUMAN SINGH, SHIV KUMAR SHARMA

body2007
Honble SHARMA, J.–Mitthan Lal, the appellant herein, along with co-accused Vinod, Suresh Jagariya, Naresh, Rajendra, Ram Prakasth, Suresh Mudgal and Bhagwan Swaroop, was put to trial before learned Additional Sessions Judge (Fast Track) No. 1 Dholpur, who vide judgment dated December 22, 2003 while acquitting co-accused, convicted and sentenced the appellant under Section 302 IPC to suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer one month simple imprisonment. (2). As per the prosecution story on January 20, 1995 the informant Biri Singh (PW.1) submitted a written report (Ex. P. 1) at 6 PM with the Police Station Sadar Dholpur to the effect that on the said day at Polling Booth of Panchgaon finding Suresh s/o Jagan Nath busy in forged polling when Hotam Singh nephew of informant forbade Suresh, he and Mitthan hurled abuses and threatened him of dire consequences. Around 4.30 PM Mitthan armed with gun and Vinod, Suresh Jagariya, Naresh, Rajendra, Ram Prakash, Suresh Mudgal and Bhagwan Das having lathis and stones came over there and started pelting stones. Mitthan opened fire that hit Hotam Singh, who died on the spot. Hotam Singh and injured persons were removed to the hospital. On that report a case was registered and investigation commenced. Dead body was subjected to autopsy, necessary memos were drawn and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 1 dholpur. Charges under Sections 147, 148, 336, 323, 325, 307, 302 and 149 IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 29 witnesses. In the explanation under Sec. 313 Cr.P.C., the accused claimed innocence. Appellant Mitthan stated that he was a contestant for the post of Sarpanch, being candidate of Congress and to debar him from the election he has been implicated falsely. Thereafter he won the election of Sarpanch while he was in Jail and defeated Megh Singh. Ten witnesses in support of their defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. (3). We have heard learned counsel for the appellant, learned Public Prosecutor and learned counsel for the complainant and with their assistance scanned the material on record. (4). Ten witnesses in support of their defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. (3). We have heard learned counsel for the appellant, learned Public Prosecutor and learned counsel for the complainant and with their assistance scanned the material on record. (4). Death of Hotam Singh was undeniably homicidal in nature. As per Post Mortem Report (Ex. P. 15) following ante mortem injuries were found on dead body:- 1. Gun shot wound (wound of entry) size 3 1/2 cm x 2 1/2 cm at the medial 1/3rd of left clavicular area blackening edges, edges are inverted 11 cm above & medial to the left nipple, oval in shape direction of wound is downward, backward & towards Rt. side. 2. Abrasion size 3 cm x 1 cm at chest Rt. side above and outer the nipple, 12cm above nipple. 3. Abrasion size 3.00 cm x 1/2cm over left 1/3rd. In the opinion of Dr.R.C. Goyal (PW. 11) the cause of death was hemorrhage and shock caused by rupture of left lung and aortic Arch. (5). Coming to the prosecution evidence we notice that Biri Singh (PW. 1), the star witness of the prosecution, in his deposition attributed the gunshot injury of Hotam Singh to appellant Mitthan. According to him Mitthan opened fire at a distance of 150 ft. In his cross examination he deposed as under:- xksyh 50-60 dne nwj ls pyk;h x;h FkhA QhVksa esa nwjh djhc Ms< lkS QhV gksxhA xksyh ,dne lh/k esa yxh FkhA xksyh yxh rc gksre dk eqag Ldwy dh rjQ FkkA Megh Singh (PW. 2) also deposed that distance of fire was 50-60 steps:- xksyh gksre dks djhc 50-60 dne nwj ls ekjh xbZ FkhA According to Devi Prasad (PW. 3) the gun was fired at a distance of 60 steps:- xksyh lkB dne nwj ls ekjh FkhA (6). Since the gunshot wound sustained by deceased had blackening edges, Dr. R.C. Goyal (PW. 11) opined that injury could have been caused by opening fire at a distance of about four feet only. In his cross examination Dr. 3) the gun was fired at a distance of 60 steps:- xksyh lkB dne nwj ls ekjh FkhA (6). Since the gunshot wound sustained by deceased had blackening edges, Dr. R.C. Goyal (PW. 11) opined that injury could have been caused by opening fire at a distance of about four feet only. In his cross examination Dr. R.C. Goyal stated thus:- ^^tks pksV e`rd gksre ds kjhj ij xksyh ds ?kko ds :i esa ik;h x;h og e`rd ls djhc rhu pkj QhV dh nwjh ls gh ekjk tkuk laHko gS D;ksafd ml pksV ij CySdfuax ekStwn Fkh blls vf/kd nwjh ls xksyh pykdj ekjus ls ?kko ij bl rjg dh CySdfuax ?kko ij ekStwn ugha gksxhA (7). Testimony of Dr. R.C. Goyal gets belied even from the site plan (Ex. P. 3) where the place of incident was as under:- ^^,Dl LFkku ij Qly xsgwa] tkS rFkk ljlksa dh VwVh iMh gqbZ gS rFkk txg-txg ij [kwu iMk gqvk gSA ?kVukLFky ,Xl ls , LFkku dh nwjh djhc 60 dne gS tgka ls eqy- }kjk xksyh pykuk crk;k x;k gSA (8). Jaipal Singh IO (PW. 26) admitted in his cross examination that he did not make investigation from Police Constables or Polling Agents:- ^^deZpkjh iqfyl deZpkjh iksfyax ,tsUV] mEehnokj fdlh ls Hkh dksbZ rQrhk ugha dh----- eSaus iapxkao iksfyax LVsku ds ikl nqdku gS mu nqdkunkjksa ds c;ku ugha fy;sA (9). It is contended by learned counsel for the appellant that since the testimony of Biri Singh, Megh Singh and Devi Prasad is belied by the medical evidence it deserves to be discarded. Learned counsel took us through Modis Medical Jurisprudence and Toxicology, Twenty-third Edition, wherein it has been mentioned at page 721 thus:- ``Blackening is found, if a firearm like a shotgun is discharged from a distance of not more than three feet and a revolver or pistol discharged within about two feet. In the absence of powder residue, no distinction can be made between one distance shot and another, as far as distance is concerned. (10). Per contra, learned counsel for the complainant canvassed that Biri Singh is a rustic villager and on technical ground his truthful version cannot be rejected. This Court should keep in mind the rural background of the witness and scenario in which the incident had happened and should not appreciate the testimony from rational angle. (10). Per contra, learned counsel for the complainant canvassed that Biri Singh is a rustic villager and on technical ground his truthful version cannot be rejected. This Court should keep in mind the rural background of the witness and scenario in which the incident had happened and should not appreciate the testimony from rational angle. Reliance is placed on State of Punjab vs. Hakam Singh (2005) 7 SCC 408 . It is further contended that firing range of gun differs from gun to gun. Reliance is placed on State of Himachal Pradesh vs. Mast Ram (2004) 8 SCC 660 , wherein the Apex Court in para 4 indicated thus:- ``While it is true that generally the firing range of a gun differs from gun to gun, the opinion of the High Court that firing range of DBML gun and SBML gun differs is based on no expert opinion and the same is based on conjectures and surmises. (11). We have considered the submissions. In Ram Narain vs. State ( AIR 1975 SC 1727 ) Honble Supreme Court indicated that if the evidence of the witnesses is totally inconsistent with the medical evidence, unless reasonably explained, it is sufficient to discard the entire case. (12). In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirements of proof can not lie in the realm of surmises and conjectures. Although, the Courts conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and circumstances of the case and the quality of the evidence adduced in the case and the material placed on record. (13). LORD DENNING in Bater vs. Bater (1950) 2 All ER 458, observed that the doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter. (14). (13). LORD DENNING in Bater vs. Bater (1950) 2 All ER 458, observed that the doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter. (14). In Gurbachan Singh vs. Satpal Singh ( AIR 1990 SC 209 ) the Honble Supreme Court laid down that the conscience of the Court can never be bound by any rule but that is coming itself dictates the consciousness and prudent exercise of the judgment. (15). In State of Karnataka vs. Ramanjanappa (2001) 8 SCC 387 their Lordships of the Supreme Court indicated that the graver the offence, greater should be the care taken to see that neither an innocent person is convicted nor a guilty allowed to escape. (16). In the instant case there are certain broad incongruities staring at the prosecution version against the appellant. They can be narrated below:- The gun allegedly recovered from the appellant was not used in the commission of offence. Learned trial Court at page 51 of the judgment observed thus:- ^^e`rd ds kjhj ls fudkyh xbZ cqysV dks Hkh tkap gsrq fof/k foKku iz;ksxkkyk t;iqj dks Hkstk x;k Fkk ftldh Hkh tkap fjiksVZ vfHkys[k ij ekStwn gS ysfdu vfHk;kstu dh vksj ls bls lk{; esa isk ugha fd;k x;kA tks cUnwd U;k;ky; esa isk gqbZ mlls og cqysV Mky dj ns[kh xbZ ysfdu og cqysV ml cUnwd dh uky esa tkuk ugha ik;k x;kA blls ,slk izrhr gksrk gS fd tks cUnwd feBuyky }kjk U;k;ky; esa isk dh xbZ oks cUnwd ugha Fkh ftldk iz;ksx vijk/k ds le; fd;k x;kA (ii) Testimony of Biri Singh, Megh Singh and Devi Prasad is belied by the medical evidence and site plan drawn by the Investigating Officer. (iii) As many as eight accused were put to trial before the learned trial Judge, out of them seven stood acquitted and the prosecution evidence was not found reliable qua the said accused. (iv) Statement under Section 313 Cr.P.C. made by appellant ``that he was the contestant for the post of Sarpanch and in order to debar him from the election he was falsely implicated in the case and even from the Jail he defeated Megh Singh in the elections, was not at all considered by the learned trial Court. (iv) Statement under Section 313 Cr.P.C. made by appellant ``that he was the contestant for the post of Sarpanch and in order to debar him from the election he was falsely implicated in the case and even from the Jail he defeated Megh Singh in the elections, was not at all considered by the learned trial Court. (v) Independent witness was not examined deliberately by the IO and finding of learned trial Judge is based on the testimony of interested and partisan witnesses. (17). We thus find that the prosecution has not established the guilt against the appellant beyond a reasonable doubt. Possibility of over implication of the appellant because of political enmity cannot be ruled out in the facts and circumstances of the case. (18). For these reasons, we allow the appeal and acquit the appellant of the charge under Section 302 IPC. Appellant Mitthan Lal, who is in jail, he shall be set at liberty, forthwith if he is not required to be detained in any other case.