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2017 DIGILAW 1081 (RAJ)

Narendra Singh v. State Of Rajasthan

2017-04-25

KAILASH CHANDRA SHARMA, MOHAMMAD RAFIQ

body2017
JUDGMENT Mohammad Rafiq, J. - This appeal has been preferred by accused-appellants Narendra Singh and Kishan Singh against the judgment dated 8.7.2014 passed by Additional Sessions Judge No. 3, Bharatpur vide which appellant no.2-Kishan Singh has been convicted for offence under section 302 IPC and sentenced to life imprisonment with fine of Rs. 25,000, in default whereof he was to further undergo simple imprisonment for a period of one year. He was also convicted for offence under section 3/25 of the Arms Act and sentenced to simple imprisonment of 3 years with fine of Rs. 5,000, in default whereof, he was to further undergo simple imprisonment of three months. He was also convicted for offence under section 341 IPC and sentenced to simple imprisonment of one month. Accused-appellant no. 1-Narendra Singh has been convicted for offence under section 302 IPC read with Section 34 IPC and sentenced to life imprisonment with fine of Rs. 25,000, in default whereof he was to further undergo simple imprisonment for a period of one year. He was also convicted for offence under section 341 IPC and sentenced to simple imprisonment of one month. All the sentences were ordered to run concurrently. 2. Briefly stated the facts of the case are that on 22.05.2009, complainant Surji @ Surajmal (PW-2) has, during his treatment, lodged a report at R.B.M. Hospital, Bharatpur before SHO, Police Station Udyog Nagar, Bharatpur alleging therein that today on 22.05.2009, they were raising construction of "Hanuman Ji Ka Mandir" on their land situated at Village Gunsara near the Road. The complainant Surajmal along-with his three brothers Bholi, Virendra and Rajendra were jointly raising the said construction. Bhopal Koli was mason and another person was working as labourer in construction of temple. At about 5.00 PM, the complainant and Bholi asked one of their brother Veero, who had placed his ''khokha'' (wooden box) on the land illegally, that the gate of the temple has to be open towards the side of this khokha therefore, he should move this to another side. Veero angrily went to home saying that he would return soon. After some time. Kishan, Ram Sahai, Gopal, Narendra and Veero came there with conspiracy to kill them. Kishan Singh was having a ''katta'' (country made pistol), Gopal was also carrying a Katta. Veero angrily went to home saying that he would return soon. After some time. Kishan, Ram Sahai, Gopal, Narendra and Veero came there with conspiracy to kill them. Kishan Singh was having a ''katta'' (country made pistol), Gopal was also carrying a Katta. Veero was carrying a lathi in his hand, Narendra was having a ''farsa'', Ram Sahai was also carrying a ''farsa''. It was also alleged that accused Kishan Singh, with the intention to kill, fired from the ''katta'', which hit Radheyshyam at his chest. Gopal had also fired, which hit at the shoulder of Laxman. Narendra gave a farsha blow on the head of Bholi. Veero gave a ''lathi'' blow on the person of Om Prakash. Ramsahai gave a ''farsa'' blow on the head of the complainant which resulted in bleeding. The villagers namely, Prakash, Vinod etc., who were seeing the occurrence, had thereafter brought them to the hospital. Radhey Shyam, who died on the spot, was also taken to the hospital. 3. On the basis of the aforementioned report, the police registered FIR No. 102/2009 for the offence under Section 332, 353 and 342 IPC and the investigation commenced. On conclusion of investigation, the charge sheet came to be filed before the learned court below for the offences under Section 147, 148, 149, 323, 341, 307 and 302 IPC against the accused persons, including the accused appellants. The case was then committed to the Court of Sessions. Thereafter, the case was transferred to the court of Additional District and Sessions Judge No. 3, Bharatpur for trial. Charges for the offence under sections 148, 323, 341/149, 307/149 & 302/149 IPC were framed against the accused appellants who denied the same and claimed to be tried. The prosecution examined as many as 30 witnesses and exhibited 53 documents. Thereafter, the accused persons were examined under Section 313 Cr.P.C., 1973 They stated that they have been falsely implicated and had no concern with the alleged incident. In defence, the statements of Narendra Singh (DW-1) were recorded and defence has produced 11 documents which were exhibited as Ex.D1 to Ex.D11. During the pendency of trial, a report was received on 30.6.2011 about death of co-accused Veero and therefore proceedings were dropped against him. In defence, the statements of Narendra Singh (DW-1) were recorded and defence has produced 11 documents which were exhibited as Ex.D1 to Ex.D11. During the pendency of trial, a report was received on 30.6.2011 about death of co-accused Veero and therefore proceedings were dropped against him. The learned Additional District and Sessions Judge No. 3, Bharatpur, after hearing both the parties, vide impugned judgment convicted and sentenced the accused appellants in the manner stated above. However, co-accused Ramsahai and Gopal were extended benefit of probation under section 4 of the Probation of Offenders Act on each of them furnishing surety bond of Rs. 25,000 and personal bond of the same amount. Hence this appeal. 4. Shri Govind Prasad Rawat, learned counsel for the appellants has argued that the learned trial court below has failed to appreciate that the prosecution had to prove its case beyond reasonable doubt. The prosecution cannot take support from the weakness of the defence. There must be proper and legal evidence and material on record to convict the accused appellants. The conviction cannot be based on uncorroborated and garbled version of prosecution witnesses. The learned trial court should act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation. The prosecution has also failed to prove the motive behind the crime and the true genesis of the incident. The chain of circumstantial evidence is also incomplete. 5. He further argued that the case of the prosecution entirely rests upon circumstantial evidence. In the present case, the circumstances, from which the learned trial court has drawn inference of guilt against the accused appellants, are not at all established by unimpeachable evidence and the same does not link the accused appellants with the offence of murder. The alleged facts are not of a determinative tendency unerringly pointing towards the guilt of the accused appellants. On the other hand, story set out by prosecution itself gives many reasonable grounds for the conclusion of innocence of accused appellants. 6. He further submitted that the prosecution has utterly failed to prove that there was common object in minds of accused resulting in ultimate decision taken by them regarding commission of offence. No such circumstances have been proved from which the factum of common object could be inferred. 6. He further submitted that the prosecution has utterly failed to prove that there was common object in minds of accused resulting in ultimate decision taken by them regarding commission of offence. No such circumstances have been proved from which the factum of common object could be inferred. It was obligatory for the prosecution to show that the circumstances give rise to a conclusive or irresistible inference of an agreement between accused persons to commit an offence. Therefore, conviction of accused appellants for the offence under Section 302 IPC with the aid of Section 149 IPC is also illegal. 7. It is argued that the learned trial court has also not considered and appreciated the statements of Hawa Singh (PW- 26) who has clearly stated that no one had come to lodge a first information report on that day in regard to the said incident and it was only on the Parcha Bayan of the complainant that the first information report was registered by him. There is no independent witnesses and the witnesses produced by the prosecution are either their family members or their relatives. Therefore, testimony of the said witnesses cannot be accepted and therefore the conviction of the accused appellants is illegal. 8. Learned counsel argued that the learned trial court has also failed to appreciate the fact that there are cross case between the parties. There is no evidence to show that who were the aggressors in the incident. There is no single witness, who has assigned any overt act to the accused appellant Narendra Singh and he was also on bail during trial. There is no evidence to show that Kishan Singh fired at Radhey Shyam. He has been falsely implicated in this case. In fact, Kishan Singh was not present at the time of incident which is evident the statements of Narendra Singh (DW1). 9. Learned counsel for the appellants argued that the trial court has also not appreciated the statements of the accused persons recorded under Section 313 Cr.P.C., 1973 and the explanation given by them in the said statements was also not considered and therefore, conviction of the accused appellants is illegal and the impugned judgment and order is liable to be quashed and set aside. 10. Shri R.S. Raghav, learned Public Prosecutor opposed the appeal and supported the judgement of the learned trial court. 10. Shri R.S. Raghav, learned Public Prosecutor opposed the appeal and supported the judgement of the learned trial court. In support of his contention, he has referred to the statement of prosecution witnesses and various exhibits, reference to which shall be made at the relevant place hereinafter. 11. We have given our anxious consideration to the rival submissions and perused the material on record. 12. According to the first version given by the informant Surji @ Surajmal in the written report (Ex.P3) dated 22.5.2009, he (the informant), Bholi S/o Ramhet, Virendra S/o Girraj, Rajendra S/o Gangaram Jat, all four of them were constructing the temple of Hanumanji on their land in Village Gunsara near the road. Bhopal Koli was the mason and one more person was working as helper in that construction work. Veero S/o Ram Sahai Jat was running a small shop in a wooden box (khokha) on the disputed land. He used to sell ''bidi'' and cigarette. The informant and his brother Bholi asked him to remove that wooden box as the gate of the temple was to be opened in that direction. The informant claimed that the land on which the temple was being constructed belonged to them. However, Veero did not remove the wooden box and abruptly left the place saying that he would return soon. After sometime, Kishan Singh S/o Ram Sahai, Gopal S/o Ramsahai, Narendra S/o Ramsahai, Veero S/o Ramsahai and Ramsahai S/o Chhajan came there. While Kishan Singh and Gopal had a ''katta'' each, Narendra and Ramsahai had ''farsas'' and Veero had a ''lathi''. As per the allegation in the written report, Kishan Singh opened fire at Radhey Shyam, which he sustained on his chest. Gopal also opened fire with ''katta'', pallet injuries of which were caused on the shoulder of Laxman. Narendra inflicted a ''farsa'' blow on the head of Bholi and Veero inflicted a ''lathi'' blow on Om Prakash. Ramsahai inflicted a ''farsa'' blow on the head of informant Surji. Prakash, Vinod and other residents of the village were present there, who saw the incident. While Radhey Shyam died on the spot, the injured were taken to Bharatpur hospital for treatment. 13. When the aforementioned first version of informant Surji @ Surajmal is compared with what he stated in the Court, it becomes evident that he has made deviation as well as improvement over his previous version. While Radhey Shyam died on the spot, the injured were taken to Bharatpur hospital for treatment. 13. When the aforementioned first version of informant Surji @ Surajmal is compared with what he stated in the Court, it becomes evident that he has made deviation as well as improvement over his previous version. What he stated as PW2 is that Bholi asked Veero that foundation of the temple was coming on the land occupied by wooden box (khokha) and, therefore, he should push that khokha to some distance in another direction. Veero apparently did not agree and left the place by saying in threatening tone that he would return soon. After sometime, Ramsahai, Kishan Singh, Narendra, Gopal and Veero came there. Kishan Singh and Gopal had ''kattas'', Narendra and Ramsahai had ''farsas'' and Veero had a ''lathi''. Narendra instigated Kishan Singh to open fire, which he did and caused injury on the chest of Radhey Shyam. The allegation against Narendra is that he instigated Kishan Singh to open fire was not there in the first version given to the police in the written report. Surji, has also alleged in the Court statement that the fire opened by Kishan Singh hit Radhey Shyam on his chest. Then Gopal also opened fired, which touched Laxman''s shoulder. Thereafter, Narendra inflicted a ''farsa'' blow on the head of Bholi. Allegations against Gopal in the written report/FIR was different in that he opened fire, which hit Laxman on his shoulders, whereas in the Court, it is totally different. 14. The injury report of Laxman (Ex.P29) has been proved by Dr. Mukesh Gupta (PW22), according to which one firearm injury was indeed sustained by Laxman on left. There was tattooing on his left forearm. In cross examination, this witness has stated that it cannot be said with certainty that injury no. 1 in injury report Ex.P29 was caused by any firearm. The possibility of this being a self inflicted injury cannot be ruled out. The other two injuries of Laxman were simple in nature. Then the allegation that Narendra inflicted a ''farsa'' blow on the head of Bholi also has not been substantiated because injury report of Bholi has not at all been produced or otherwise substantiated. It can therefore be accepted that Bholi did not at all receive any injury. The other two injuries of Laxman were simple in nature. Then the allegation that Narendra inflicted a ''farsa'' blow on the head of Bholi also has not been substantiated because injury report of Bholi has not at all been produced or otherwise substantiated. It can therefore be accepted that Bholi did not at all receive any injury. Then Surji in Court statement has alleged that the ''farsa'' blow inflicted by Narendra, hit his head from reverse side, whereas he sustained one injury each on eye and nose. In cross examination, this witness admitted that there was previous enmity between the parties and that the incident suddenly took place because the dispute was owning to wooden box (khokha). While the complainant insisted that the accused should remove the khokha, the accused party resisted the same. This khokha was fixed there only 2-3 years ago. 15. Bholi (PW3) has also stated that earlier Veero had removed the wooden box (khokha), but then they allowed him to put the khokha because he pleaded that this was the only source of his income. The khokha was fixed about a year ago. This witness has stated that he with folded hands requested Veero to remove the khokha because the temple was to have its opening in that direction, but Veero refused to do so. This witness has also stated that Kishan, Niranjan and Gopal had ''kattas'', Ramsahai and Niranjan had ''farsas'' and Veero had ''lathi''. This witness has alleged that when accused reached there, Niranjan instigated Kishan Singh to open fire and the fire opened by Kishan Singh hit Radhey Shyam and then Gopal opened fire, which hit the shoulder of Laxman. Narendra Singh inflicted ''farsa'' blow, which he (this witness) received on his nose. Ram Sahai inflicted a ''farsa'' blow on Surji, which he received on his head. In cross examination, this witness stated that land was of Dharamshala. The statutes of Hanuman and Mahadev were installed in the temple apart from other statutes. Two of the statues were removed by Veero. At one point of time, Veero promised to remove the khokha, but Narendra asked him not to do. In cross examination, this witness stated that land was of Dharamshala. The statutes of Hanuman and Mahadev were installed in the temple apart from other statutes. Two of the statues were removed by Veero. At one point of time, Veero promised to remove the khokha, but Narendra asked him not to do. In cross examination, this witness admitted that dispute occurred because Veero did not remove khokha, but when he was confronted with police statement Ex.D2, he said that it is wrong to suggest that he ever told the police that Niranjan immediately on arriving at the seen of the occurrence asked Kishan to open fire. He cannot explain why it has not been mentioned in the police statement. On the contrary, this witness has further stated that in the police statement (Ex.D2), it is wrongly mentioned that he told the police that Narendra instigated Kishan to open fire at the accused. Om Prakash has also stated that Narendra instigated Kishan Singh to open fire and Kishan Singh thereupon opened fire at Radhey Shyam, which was received by Laxman on his shoulder. Veero inflicted a ''lathi'' blow at his back (Radhey Shyam). Fire opened by Kishan Singh was received by him on his chest. This witness has also admitted that there is no previous enmity between them. Laxman (PW5) has alleged that Narendra, Gopal, Ramsahai, Veero and Kishan Singh attacked the complainant party. Kishan Singh and Gopal had ''katta'', Ramsahai and Narendra had ''farsa'' and Veero had ''lathi''. Narendra instigated Kishan Singh to open fire, which hit the chest of Radhey Shyam, due to which he fell down. Thereafter, Gopal opened fire at this witness, which he received on his left shoulder. Surji inflicted a ''farsa'' blow by reverse side on Ramsahai and Narendra inflicted ''farsa'' blow on Bholi, which he received on his nose. Veero inflicted a ''lathi'' blow on Om Prakash. In cross examination, this witness has also admitted that incident took place when the complainant party insisted accused party especially Veero to remove the khokha, which he refused to do. 16. Indisputably, there are number of injured on the side of the accused and there were cross cases between the parties. While according to complainant party, accused were aggressor, but the accused on the other hand are asserting that complainant party was aggressor. 16. Indisputably, there are number of injured on the side of the accused and there were cross cases between the parties. While according to complainant party, accused were aggressor, but the accused on the other hand are asserting that complainant party was aggressor. Apart from deceased, Motiram on the side of complainant party sustained bruises, which is evident from Ex.P27, which are simple by blunt weapon. Surajmal sustained two injuries; one of which was complaint of pain on shoulder with no visible injury and another was lacerated wound, both injuries according to injury report (Ex.P28) were simple in nature. Laxman sustained three injuries, all of which were simple by blunt weapon as per injury report (Ex.P29). X-ray reports of Surajmal and Laxman Ex.P29A and Ex.P30 respectively did not show any bony injury. As against this, Narendra on the accused side has sustained seven injuries. His MLR is Ex.D3A. He was advised x-ray for injury nos.4, 5 and 6. As per his x-ray report Ex.D4A, both bones of his right leg were having fractures, thus injury no. 6 was opined to be grievous in nature. Gopal sustained 9 injuries as per his injury report Ex.D5A. He was advised x-ray in respect of injury no. 1 to 7. According to his x-ray report (Ex.D6A), he sustained fracture of ulna bone on the right shoulder and metacarpal bone of fifth finger of right hand and, therefore, injury nos.1 and 2 were opined to be grievous. Ram Sahai sustained five injuries. His injury report is Ex.D11. As per his x-ray report Ex.D7A, there was fracture of fifth metacarpal bone of his left hand. The learned trial court in its judgement has held that accused Narendra was sharing common object with another accused Kishan and, yet it has convicted accused Kishan Singh for offence under section 302 simplicitor, but at the same time convicted Narendra for offence under section 302 IPC with the aid of Section 34 IPC. 17. The learned trial court has however held that Ram Sahai, Veero and Gopal were member of unlawful assembly and, therefore, convicted them for offence under section 147 and 148, but at the same time, it has not convicted the accused-appellant Kishan and Narendra for those offences, thus not holding them member of the unlawful assembly. 17. The learned trial court has however held that Ram Sahai, Veero and Gopal were member of unlawful assembly and, therefore, convicted them for offence under section 147 and 148, but at the same time, it has not convicted the accused-appellant Kishan and Narendra for those offences, thus not holding them member of the unlawful assembly. But, the trial court has convicted accusedappellant Kishan and Narendra for offence under section 341 IPC while also convicting the accused Kishan for offence under section 3/25 of Arms Act. Accused Ram Sahai and Gopal were convicted for offence under section 323 read with Section 149 IPC and considering that Veero had died during pendency of the trial, the proceedings were dropped against him and he could not have been convicted for substantive offence. 18. The facts of the case are not such where it has been held that accused formed any unlawful assembly inasmuch as shared common intention or for that matter, the accused Kishan Singh and Narendra shared common object. While it may be true that one person on the side of the complainant party had died, but otherwise number of grievous injuries on the side of the accused party resulting into fractures are more in number. The findings of the learned trial court in holding Narendra sharing common object with Kishan Singh because it was he, who instigated him to open fire at Radhey Shyam, cannot be sustained because the evidence of the prosecution witnesses thereabout was not consistent. While some of the prosecution witnesses have stated that instigation was made by Narendra to other accused, Bholi (PW3) has made such allegation against Niranjan Singh and when specifically confronted with his police statement (Ex.D2) where he made such allegation against Narendra, he denied having given such statement before the police and reiterated that such instigation was made by Niranjan, whereas other witnesses have not named Narendra. As per prosecution witnesses, Kishan Singh had a country made pistol. Apart from Kishan, Gopal also had a ''katta''. One country made pistol was recovered vide recovery memo Ex.P49 at the instance of Kishan Singh pursuant to information given by him under section 27 (Ex.P48). No other ''katta'' has been recovered. The trial court has therefore rightly held Gopal guilty only for offence under section 323 apart from Section 147 and 148 of IPC. One country made pistol was recovered vide recovery memo Ex.P49 at the instance of Kishan Singh pursuant to information given by him under section 27 (Ex.P48). No other ''katta'' has been recovered. The trial court has therefore rightly held Gopal guilty only for offence under section 323 apart from Section 147 and 148 of IPC. But cumulative study of the evidence of the prosecution in this case and the nature and number of injuries received on either side clearly go to show that it was a case of free fight and not that the accused-party alone came with weapons with a pre-plan to commit murder of Radhey Shyam and cause injuries to others. At the same time, incident had taken place suddenly at the spur of moment in the heat of passion owing to the dispute where the complainant party insisted on the accused Veero to remove khokha as they had to open the gate of temple in that direction and the complainant refused to do so. It was in this situation that one of the accused namely; Kishan suddenly fired from ''katta'', resulting into unfortunate death of Radhey Shyam. No other accused shared common intention with him for this offence but his offence would not be culpable homicide amounting to murder but would be rather culpable homicide not amounting to murder with intention and knowledge both as he knows that the injury caused by him was likely to result in the death of victim. Thus his offence would fall in Section 304 Part-I of IPC. His conviction for offence under section 302 IPC is therefore set aside and he is convicted for offence under Section 304 Part-I IPC for his individual act and sentenced to the period of 10 years with fine of Rs. 25,000, in default whereof to further undergo simple imprisonment for a period of one year. His conviction and sentence for offence under section 3/25 of IPC and 341 IPC is however maintained. The conviction of accused-appellant Narendra for offence under section 302/34 is set aside. His conviction and sentence for offence under section 341 is however maintained. He is on bail, therefore, his bail bonds are discharged. He need not surrender and is set at liberty forthwith. 19. The conviction of accused-appellant Narendra for offence under section 302/34 is set aside. His conviction and sentence for offence under section 341 is however maintained. He is on bail, therefore, his bail bonds are discharged. He need not surrender and is set at liberty forthwith. 19. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, appellants are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellants aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.