Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 1403 (RAJ)

Binder Singh v. State

2018-06-29

SANDEEP MEHTA, VIRENDRA KUMAR MATHUR

body2018
JUDGMENT Sandeep Mehta, J. The instant matter is listed before this Division Bench in the special category of cases to be heard in vacations under the directions issued by Hon'ble the Chief Justice of India in an endeavour to reduce the arrears of pending appeals wherein the accused are in jail. 2. Though this Court had appointed an amicus curiae to represent the appellant however, he has failed to appear to argue the matter. Considering the fact that the appellant is in custody, we considered it fit to hear the appeal with the assistance of the learned Public Prosecutor. 3. The instant appeal was forwarded by the appellant convict Binder Singh from jail, being aggrieved by the judgment dated 19.05.2017 passed by the Additional Sessions Judge, Jaisalmer in Sessions Case No.02/2016 (28/2016) convicting and sentencing the appellant as below: (i) Offence under Section 302 IPC- Imprisonment for life and a fine of Rs. 10,000/- in default of payment of fine, 6 months' additional imprisonment. 4. Facts relevant and essential for deciding the appeal are noted herein below: 5. As per the prosecution story, the appellant Binder Singh had taken the field of Gordhan Singh located at Muraba No.143/2014, 1 LMB, Sarhad Raymala on share basis for cultivation and had sown Isabghol crop thereupon. He also erected a temporary Dera near some shrubs on the boundary of the field and was living there. On 19.12.2015, Mahendra Singh S/o Pokhar Ram Jat resident of Pokharowali, District Ganganagar came down to see the field. He started living with Binder Singh. On 22.12.2015, Binder Singh and Mahendra Singh consumed liquor together. Mahendra Singh became inebriated and started abusing Binder Singh who too was under the effect of liquor. Being provoked by the abuses hurled at him by Mahendra Singh, Binder Singh picked up Tagli an agricultural implement and hit Mahendra Singh due to which, he fell down unconscious. Binder Singh called Gaimer Singh and apprised him of the incident. Gaimer Singh reached the place of occurrence and saw Mahendra Singh lying unconscious near the Aak shrubs. He boarded Mahendra Singh on to a vehicle and brought him to Ramgarh Hospital where, after providing primary treatment, Mahendra Singh was referred to Jaisalmer. From Jaisalmer, he was referred to and admitted in MDM Hospital, Jodhpur on 23.12.2015. He was provided treatment but could not survive. Ultimately, he passed away on 24.12.2015. He boarded Mahendra Singh on to a vehicle and brought him to Ramgarh Hospital where, after providing primary treatment, Mahendra Singh was referred to Jaisalmer. From Jaisalmer, he was referred to and admitted in MDM Hospital, Jodhpur on 23.12.2015. He was provided treatment but could not survive. Ultimately, he passed away on 24.12.2015. Shri Gaimer Singh lodged a written report at the Police Station Ramgarh with the above allegations upon which, an FIR No.110/2015 was registered against the appellant for the offence under Section 302 IPC. Postmortem was got conducted upon the body of the deceased by Dr. Mukesh Kumar (PW-18) who gave an opinion that Mahendra Singh died because of chest injury. He prepared the postmortem report (Ex.P/28). After usual investigation, the appellant was arrested and a charge-sheet was filed against him for the offence under Section 302 IPC. Since the offence was triable by Court of Sessions, the case was committed to the Court of Sessions Judge, Jaisalmer from where, it was transferred to the Court of the learned Additional Sessions Judge, Jaisalmer for trial. Charge was framed against the appellant for the offence under Section 302 IPC. He pleaded not guilty and claimed trial. The prosecution, examined as many as 18 witnesses in support of its case and exhibited 36 documents. The accused refuted the prosecution allegation in his statement recorded under Section 313 Cr.P.C. and examined witness Harpal Singh in defence. The learned trial court, at the conclusion of trial, proceeded to convict and sentence the appellant as above. Being aggrieved, the appellant has forwarded this jail appeal seeking to assail the impugned judgment dated 19.05.2017 and craving acquittal from the charge. 6. We have minutely and thoroughly sifted the material available on record and have reappreciated the evidence led by the prosecution and defence and have gone through the impugned judgment. 7. The principal witness of prosecution was none other than Gaimer Singh (PW-1) being the first informant. He repeated the story set out in the FIR. While testifying, he also stated that Poonam Singh and Prabhu Ram, who were in possession of the neighbouring field, also told him that Mahendra Singh and Binder Singh were quarreling with each other. However, Poonam Singh (PW-2) did not support the prosecution story. Prabhu Ram was not examined as a witness. He repeated the story set out in the FIR. While testifying, he also stated that Poonam Singh and Prabhu Ram, who were in possession of the neighbouring field, also told him that Mahendra Singh and Binder Singh were quarreling with each other. However, Poonam Singh (PW-2) did not support the prosecution story. Prabhu Ram was not examined as a witness. Nathu Singh (PW-5) claims to have gained knowledge of the incident and allegedly called Gaimer Singh to apprise him of the same. However, Nathu Singh could not stand the questions put to him in cross-examination and admitted that he had no knowledge as to the identity of the accused and he did not see the incident happening. Bhanwar Singh (PW-12) was the officer incharge of the Police Station Ramgarh. He received the FIR and conducted the usual investigation before filing the charge sheet against the appellant. It may be stated here that the doctors who treated Mahendra Singh either at Ramgarh, Jaisalmer as well as at MDM Hospital, Jodhpur were not examined by the prosecution during trial. Dr. Mukesh Kumar Bansal (PW-28), who conducted postmortem, stated that he noticed as many as six injuries on the deadbody of Mahendra Singh of which, five were caused by a pointed weapon. Underneath the injury No.6, which was located on the back of the deceased, his fifth and sixth ribs were found fractured resulting in rupture of the left lung leading to excessive bleeding and death. Significantly enough, the doctor did not utter a single word regarding any of the injuries suffered by Mahendra Singh being fatal or sufficient to cause death in ordinary course of nature. It is further relevant to mention here that none of the treating doctors, who provided treatment to the deceased from 22.12.2015 to 24.12.2015 i.e. till his death were examined by the prosecution and the treatment documents were also not placed on record. Thus, there is no evidence on record to appreciate as to what was the condition of Mahendra Singh from the date of the incident till he expired and as to whether or not he was provided proper treatment during this period. 8. Thus, there is no evidence on record to appreciate as to what was the condition of Mahendra Singh from the date of the incident till he expired and as to whether or not he was provided proper treatment during this period. 8. Having considered the evidence of the star prosecution witness Gaimer Singh who virtually gave evidence of extrajudicial confession against the appellant, we are of the firm opinion that the witness is not a wholly reliable witness and his evidence can only be considered as partly reliable. The witness claims to have gained knowledge about the alleged assault made on Mahendra Singh as early as on 22.12.2015 through the disclosure made by the appellant himself. But he kept silent and did not report the matter to the police for almost three days. The prosecution is also guilty of failing to examine the medical officers at Ramgarh, Jaisalmer and Jodhpur who treated Mahendra Singh while he was alive between 22.12.2015 and 24.12.2015. Manifestly, looking to the nature of injuries suffered by Mahendra Singh, the case was medico-legal in nature and thus, the concerned persons would have informed the police immediately had they been apprised that Mahendra Singh had received the injuries in an assault. 9. Be that as it may. Even if, only partly reliable evidence of the witness Gaimer Singh is considered as providing material enough to convict the appellant for the alleged assault on Mahendra Singh then also, it is apparent that the extrajudicial confession allegedly made by the appellant to Gaimer Singh was to the effect that he and the deceased had consumed liquor together where after, Mahendra Singh started abusing him and being provoked, Binder Singh picked up an agricultural implement and caused injuries to Mahendra Singh. Manifestly, the nature of the injuries caused to Mahendra, considered in light of the evidence of Dr. Mukesh Kumar (PW-18), cannot be held as being sufficient in ordinary course to cause death. Rather, the doctor did not even state that the injuries were likely to cause death. Thus, even if for argument's sake, the prosecution case is accepted at the highest, at best, it can be held that the appellant Binder Singh inflicted blows by an agricultural implement to the deceased Mahendra Singh under provocation while both were intoxicated and caused him a grievous injury on his rib cage area. Thus, even if for argument's sake, the prosecution case is accepted at the highest, at best, it can be held that the appellant Binder Singh inflicted blows by an agricultural implement to the deceased Mahendra Singh under provocation while both were intoxicated and caused him a grievous injury on his rib cage area. As noted above, the Medical Officer did not opine that the injuries caused to Mahendra Singh were fatal in nature or were sufficient to cause his death. The prosecution has failed to prove as to the nature of treatment provided to the deceased between the date of assault i.e. 22.12.2012 till he expired i.e. 24.12.2015. The Medical Officer noticed fractures of two ribs of Mahendra Singh upon conducting postmortem and thus, we are of the firm opinion that it would be safe to alter the conviction of the appellant from the offence under Section 302 IPC to the one under Section 325 IPC and also, to convict him for the offence under Section 323 IPC for the grievous and simple injuries caused to Mahendra Singh. 10. Accordingly, the instant appeal deserves to be allowed in part. The impugned judgment dated 19.05.2017 passed by the Additional Sessions Judge, Jaisalmer in Sessions Case No.02/2016 (28/2016) is hereby modified. The conviction of the appellant under Section 302 IPC is set aside and instead, he is convicted for the offence under Section 325 IPC and sentenced to rigorous imprisonment of 3 years and a fine of Rs. 5,000/- on this count, in default of payment of fine, the appellant shall further undergo 2 months' simple imprisonment. He is also convicted for the offence under Section 323 IPC and sentenced to 1 year S.I. and a fine of Rs. 1,000/- in default of payment of fine, he shall further undergo 15 days' simple imprisonment. Both the sentences are directed to run concurrently. 11. The appeal is allowed in part in these terms.