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2013 DIGILAW 1186 (RAJ)

Bikar Singh v. State of Rajasthan

2013-07-05

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant appeal was preferred by the appellant from jail being aggrieved of the judgment dated 2.5.1990 passed by the learned Sessions Judge, Sriganganagar in Sessions Case No. 40/1988, whereby the appellant was acquitted from the charge under Section 302 I.P.C. and instead was convicted for the offence under Section 304 Part II I.P.C. and was sentenced to three years' R.I. 2. Succinctly stated the facts of the case are that a First Information Report (Ex.P-1) was registered at the Police Station Hindumalkot, District Sriganganagar on 12.5.1988 by one Gurdarshan Singh. As per the allegations levelled in the F.I.R., the first informant's father Mahendra Singh had gone to the village Sujawalpur on the previous day for some household work. He did not return back on which, the first informant started searching for him. When he went to Sujawalpur he was informed by one Baghchand Mahajan that his father had been murdered by the appellant Bikar Singh the real brother of Mahendra Singh. On the basis of this report, an F.I.R. No. 61/1988 was registered for the offence under Section 302 I.P.C. and investigation commenced. The Investigating Officer proceeded to the house of the appellant. The appellant's house was found locked from outside. The lock was broken and the Investigating Officer entered into the house and found that the dead body of Mahendra Singh was lying in the courtyard of the house. The body was recovered and thereafter subjected to postmortem on 13.5.1988. As per the postmortem report, the deceased was found having 7 external injuries in the nature of contusions and abrasions on his person. However, none of the internal organs of the deceased was found effected by the injuries. The cause of death was kept reserved for receiving the viscera report. The viscera examination report was also received as per which, nothing abnormal was found in the viscer as of the deceased. The Investigating Officer at the conclusion of the investigation proceeded to file a charge-sheet against the appellant for the offence under Section 302 I.P.C. The case was committed to the Court to the Sessions Judge, Sriganganagar. The learned trial Judge framed charge against the appellant for the offence under Section 302 I.P.C. The appellant pleaded not guilty and claimed trial. At the trial, prosecution examined as many as 9 witnesses in support of its case. The learned trial Judge framed charge against the appellant for the offence under Section 302 I.P.C. The appellant pleaded not guilty and claimed trial. At the trial, prosecution examined as many as 9 witnesses in support of its case. The appellant in his statement under Section 313 of the Cr.P.C. denied the allegations of the prosecution but did not choose to lead any defence. The learned trial Judge vide the impugned judgment found that the testimony of the prosecution witnesses was highly suspicious. The star eye-witness of the prosecution namely PW-3 Karnail Singh was not found to be a reliable witness. The conduct of the Investigating Officer was also found to be suspicious. The learned trial Judge also found that the appellant was not present in the house at the time when the body of the deceased was recovered from therein. Ultimately, the learned trial Judge proceeded to rely on circumstances and convicted the appellant for the offence under Section 304 Part II I.P.C., holding that the appellant did not intend to kill the deceased and sentenced him to three years' Rigorous Imprisonment. Hence, this appeal. 3. Shri Ashwini Babel learned Amicus Curiae contended that the conviction of the appellant in this case is absolutely contrary to facts as well as law and thus deserves to be set aside. He urged that the learned trial Judge himself found that the testimony of the star prosecution witness Karnai Singh PW-3 was unreliable. The conduct of the Investigating Officer was also found to be suspicious. The recovery of the weapon of the offence at the appellant's instance was also discarded and thus, there remains no evidence on the record of the case for upholding the guilt of the appellant. He thus, prayed that the judgment of the conviction of the appellant deserves to be set aside and the appellant deserves to be acquitted of the charge. 4. Per contra, learned Public Prosecutor vehemently opposed the submissions advanced by the learned counsel for the appellant. He argued that the appellant assaulted his own real brother and thereafter left him to die after locking him in the house in a helpless condition. The dead body of Mahendra Singh was found lying in the house of the appellant. Thus, the burden of proof shifts on the appellant to prove as to how his brother received a large number of injuries while being in his house. The dead body of Mahendra Singh was found lying in the house of the appellant. Thus, the burden of proof shifts on the appellant to prove as to how his brother received a large number of injuries while being in his house. Learned Public Prosecutor thus argued that the appeal is liable to be dismissed. 5. Heard and considered the arguments advanced at the bar and perused the judgment impugned and the record. 6. The learned trial Judge vide para Nos. 9 and 10 of the judgment found that the sole eye-witness produced by the prosecution namely PW-3 Karnail Singh was not a reliable witness. The learned trial Judge also found that the conduct of Karnail Singh, who was a close relative of the deceased in not taking any action after allegedly seeing the assault clearly shows that he was lying on material aspects of his testimony. The learned trial Judge ultimately held that the witness was a created and cooked up witness. The learned trial Judge also found in para No. 12 of the judgment that the conduct of the Investigating Officer was also highly suspicious and the investigation was not conducted by him fairly. 7. The only reasoning on the basis whereof the learned trial Judge proceeded to hold the appellant guilty was based on the fact that the appellant locked his brother inside his house and then absconded. 8. The trial Judge himself recorded in his judgment that the appellant was not present in his house when the deceased expired. The trial Judge relied upon the fact that the door of the appellant's house was broken into and then the dead body was recovered. This fact is based on the testimony of the Investigating Officer PW-9 Karan Singh and PW-1 Gurdarshan Singh. This finding of the trial Judge that the deceased was found in the injured condition in the house of the appellant is just and proper in view of the evidence, which has been collected on record PW-1 Gurdarshan Singh has also stated that the body of his father was recovered from inside the house of the appellant, which was locked. The appellant was found unavailable at his house after the incident and could be arrested on 31.5.1988 i.e. after nearly 20 days of the occurrence. The appellant was found unavailable at his house after the incident and could be arrested on 31.5.1988 i.e. after nearly 20 days of the occurrence. In this view of the matter, it is apparent that the burden of proof shifts as per Section 106 of the Evidence Act on to the appellant for showing as to how the deceased came to meet with so many injuries while being inside this house. He however, could not discharge this burden. 9. Now coming to the question of the offence, which can be said to be made out against the appellant. The deceased was found having 7 injuries on his person out of which 5 were contusions and 2 were abrasions. The injury No. 3 was a contusion measuring 2" x 1" on the right side of the head above the eye. The other injuries were on his hands and legs. None of the injuries was stated by the medical jurist PW-6 Dr. Om Prakash Sharma as having effected any of the internal organs of the deceased or being sufficient or likely to cause his death. The injuries were simple in nature, therefore, the appellant's conviction for the offence under Section 304 Part II I.P.C. is prima facie unsustainable. At best the appellant can be held guilty for the offence under Section 323 I.P.C. In this view of the matter, the appeal deserves to be allowed partly. 10. Accordingly, the appeal succeeds and is allowed in part. The conviction of the appellant from the offence under Section 304 Part II I.P.C. is converted to the offence under Section 323 I.P.C. The appellant has remained in custody for about 7 months. The incident took place way-back in the year 1988. Thus, sending him back to custody after such a long period of time cannot be said to be expedient in the interest of justice. Accordingly, whilst allowing the appeal in part and converting the offence under Section 304 Part II I.P.C. to the offence under Section 323 I.P.C., the appellant's sentences are reduced to the period already undergone by him. He is on bail, therefore, he need not surrender. His bail bonds are discharged.Appeal partly allowed. *******