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2017 DIGILAW 1748 (RAJ)

Bhanwar Singh v. State of Rajasthan

2017-08-08

GOVIND MATHUR, VINIT KUMAR MATHUR

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JUDGMENT : Govind Mathur, J. Learned Additional Sessions Judge No.1, Bhilwara, under the judgment dated 4.11.2011, recorded conviction of accused appellant Bhanwar Singh for the offence punishable under Section 302 Indian Penal Code inter-alia and awarded sentence to undergo life term imprisonment with a fine of Rs.1000- with default stipulation. The other accused have been convicted for the offence punishable under Section 302/149 Indian Penal Code inter-alia and are also convicted to undergo life term imprisonment with fine stipulation. 2. The argument advanced on behalf of the appellant is that even by accepting the prosecution case, the crime said to be committed by accused Bhanwar Singh does not travel beyond an offence punishable under Section 304 Part-II Indian Penal Code. According to learned counsel no evidence is available on record to establish intention of the accused to kill Shri Banshi Singh. It is further submitted that the other accused persons could have not been convicted for the offence punishable under Section 302/149 Indian Penal Code as there is no evidence to establish common object to commit the crime in question. 3. The factual matrix necessary to be noticed to adjudicate the instant appeal is as follows:- At the instance of injured Shri Ghanshyam Singh a criminal case was lodged at Police Station Raipur on 17.8.2010 at 09:30 AM. As per the facts averred in the first information report (Ex.P/1) on 17.8.2010 at about 08:30 AM Shri Ghanshyam Singh was standing outside a temple and his father Shri Banshi Singh was moving towards Choudhary s colony to have butter milk. Shri Ghanshyam Singh heard screams of Shri Banshi Singh, therefore, he alongwith Madhav Singh, Madan Singh and Gokal Singh rushed towards the direction wherefrom the screams were coming. Outside the house of Mishrilal Badwa Ghanshyam Singh and his other companions saw that accused Bhanwar Singh, Gotu Singh, Samarath Singh, Smt. Badami, Smt. Tara and Smt. Mamta all armed with iron rods, lathis and kulharis were beating Banshi Singh. An injury on the head of Banshi Singh was caused by Bhanwar Singh with the aid of iron rod. Banshi Singh then was taken to the hospital but he died in transit. 4. The investigating agency after completing the investigation submitted a report charging accused Bhanwar Singh for the offences punishable under Sections 148, 323/149, 325/149 and 302 Indian Penal Code. Other accused persons viz. Banshi Singh then was taken to the hospital but he died in transit. 4. The investigating agency after completing the investigation submitted a report charging accused Bhanwar Singh for the offences punishable under Sections 148, 323/149, 325/149 and 302 Indian Penal Code. Other accused persons viz. Gotu Singh, Samarath Singh, Smt. Badami, Smt. Tara and Smt. Mamta were charged for commission of offences punishable under Section 148, 323/149, 325/149 and 302/149 Indian Penal Code. On denial of charge, trial commenced. 5. The prosecution supported its case with the aid of 17 witnesses out of whom Ghanshyam Singh (PW-1), Madhav Singh (PW-2) and Madan Singh (PW-4) were cited as eye witnesses. Dr. Ghanshyam Chawla (PW-14) adduced medical evidence and Shri Ajay Kant (PW-16) narrated all the steps taken during the course of investigation being Investigating Officer. Several documents and articles too were examined during the course of trial. An opportunity was given to all the accused persons including accused appellant Bhanwar Singh to explain adverse circumstances available in the prosecution evidence. The accused denied the same with specific stand that they have been falsely implicated in the case concerned. As per accused appellants the deceased and his family members were aggressor and they attacked upon him. 6. Learned trial court on basis of the evidence available on record convicted appellant Bhanwar Singh and awarded the sentence in question. We have examined the entire evidence available on record minutely. 7. At the threshold we would like to refer the medical evidence adduced by Dr. Ghanshyam Chawla (PW-14). As per this witness, deceased Banshi Singh was having a punctured wound measuring cm x cm x cm without any ligature mark. As per this witness no other external injury was available on the body of deceased Banshi Singh. On opening of skull, blood clotting in the frontal region was noticed and the membrane in the same region was also found torned. The cause of death was coma resulting from extensive head injury which was antemortem in nature. The medical evidence clearly indicates that the deceased was having a single injury on his head and that was the cause of death. 8. As per eye witnesses the head injury was caused by accused Bhanwar Singh. The cause of death was coma resulting from extensive head injury which was antemortem in nature. The medical evidence clearly indicates that the deceased was having a single injury on his head and that was the cause of death. 8. As per eye witnesses the head injury was caused by accused Bhanwar Singh. The injured eye witness Ghanshyam Singh (PW-1) and Madhav Singh (PW-2) though have not disclosed how the entire incident occurred, but as per them head injury was caused by Bhanwar Singh. The head injury on its face is having very short measurements and whatever effect that is having is of internal nature. No evidence as a matter of fact is available on record to establish that the appellant Bhanwar Singh was intending to cause death of Shri Banshi Singh. In absence of that the only finding that could have been given is that accused Bhanwar Singh inflicted fatal injury on the head of deceased Banshi Singh but he was not having any intention to kill him and as such the crime committed does not travel beyond an offence punishable under Section 304 Part-II Indian Penal Code. 9. So far as other accused persons are concerned, their conviction has been recorded with the aid of Section 149 Indian Penal Code. On examination of entire evidence we do not find any material to establish common object to commit the crime in question. In view of it, the conviction of all the accused persons including Bhanwar Singh is not justifiable for the offences punishable under Sections 323 and 325 Indian Penal Code i.e. recorded with the aid of Section 149 Indian Penal Code. The conviction of the accused persons other than Bhanwar Singh for the offence punishable under Section 302/149 Indian Penal Code is also bad for the same reason. Suffice to mention that the prosecution witnesses have categorically stated that the accused persons were participating in rioting with deadly weapons and as such that stands established without any doubt. However, their participation in the offence pertaining to rioting being armed with weapon that could have been used to cause death is established, hence their conviction under Section 148 Indian Penal Code deserves to be affirmed. 10. In view of it, this appeal deserves to be allowed in part. However, their participation in the offence pertaining to rioting being armed with weapon that could have been used to cause death is established, hence their conviction under Section 148 Indian Penal Code deserves to be affirmed. 10. In view of it, this appeal deserves to be allowed in part. Accordingly the conviction of accused Bhanwar Singh for the offence punishable under Section 302 Indian Penal Code is modified for the offence punishable under Section 304 Part-II Indian Penal Code. His sentence too is accordingly modified from life imprisonment with fine of Rs.1000/- to the rigorous imprisonment for a period of seven years with fine of Rs.1000/- with default stipulation as mentioned by the trial court. The conviction of all the accused persons other than Bhanwar Singh for the offence punishable under Section 302/149 Indian Penal Code is set aside so also the sentence awarded. The conviction of all the accused persons for the offences punishable under Sections 323/149 and 325/149 Indian Penal Code is set aside, hence the sentence awarded too is quashed. The conviction of all the accused persons for the offence punishable under Section 148 Indian Penal Code is affirmed so also the sentence awarded. All the appellants have already undergone the sentence, hence they be released from State custody forthwith, if not required otherwise.