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2018 DIGILAW 641 (RAJ)

BAGGA SINGH RAI SIKH v. STATE OF RAJASTHAN

2018-02-23

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

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JUDGMENT : GOVERDHAN BARDHAR, J. 1. The instant criminal appeal has been filed by the accused appellant against the Judgment of conviction and sentence dated 18.02.2013 passed by learned Addl. Sessions Judge No. 1, Kishangarhbas (Alwar) in Sessions Cases No. 54/2011 whereby the learned trial court has convicted and sentenced the accused appellant under section 302/34 IPC to life imprisonment and a fine of Rs. 100/-, in default of payment of fine the accused appellant was to further undergo rigorous imprisonment of three months. 2. Briefly stated the prosecution case is that Pritam Singh (PW2) and his brother Kapoor Singh (deceased) were returning back from their fields on 13.07.1983, at about 6:30 P.M., Kapoor Singh was going somewhat ahead of Pritam Singh (PW2). At this time accused persons Ram Singh, Bagga Singh and Kala Singh @ Ranjeet Singh came on the spot, armed with farsi, kasia and lathi. All the above three persons attacked Kapoor Singh with the weapons in their hands. Pritam Singh (PW2) raised hue and cry, on which Harnam Singh (PW1) and Tooti Khan (PW2) came on the spot. Tooti Khan (PW2) at that time was grazing she-goats in a nearby field. As soon as the above persons came on the spot the accused persons ran away. The motive for the crime has been stated that there was some dispute regarding the cultivation of some land. Kapoor Singh, in the injured condition was brought in the village and thereafter, taken to Bas Kripal Nagar Hospital. Regarding the alleged incident, Pritam Singh (PW2) lodged an FIR No. 86/1983 (Ex.P1) in the night of 13.07.1983, itself at 10:00 P.M to the S.H.O., Police Station, Kishangarhbas, District Alwar. The Police prepared the Inquest-memo (Ex.P5), collected blood-stained soil, prepared site-plan and also recovered a pair of Chappal and a lathi from the spot. 3. After completion of investigation, the police submitted charge-sheet only against Ram Singh (co-accused in this case) and against Co-accused Bagga Singh (accused appellant in this case) and Kala Singh (Co-accused in this case) was filed under section 299 Cr.P.C., 1973 in the competent Court. Accused appellant was arrested on 04.08.2011. Thereafter, the police submitted supplementary charge-sheet against the accused appellant for the offence under section 302/34 IPC. Accused appellant was arrested on 04.08.2011. Thereafter, the police submitted supplementary charge-sheet against the accused appellant for the offence under section 302/34 IPC. After taking cognizance in the matter by the learned trial court against the accused appellant, the case was committed to the Court of Sessions Judge, Alwar, from where the case was transferred to the learned trial court. The learned trial court thereafter framed the charge against accused appellant under section 302/34 IPC, who denied the charges and claimed to be tried. The prosecution in support of its case got the statements of eight witnesses recorded and eleven documents exhibited. It is pertinent to note that in the matter in hand during the course of trial it was reported that prosecution witnesses Tooti Khan and Badri Narain had died but their statements were got recorded during the course of trial of co-accused Ram Singh, whose trial was concluded separately. The learned trial court, as such, in the light of provisions of section 33 of the Indian Evidence Act, vide order dated 17.12.2012 directed to consider the statements of the prosecution witnesses Tooti Khan and Badri Narain which were recorded during the course of trial of Co-accused Ram Singh as PW2 and PW8 respectively. Thereafter, the accused appellant was examined under section 313 Cr.P.C., 1973 In defence, the accused appellant did not produce any evidence. The learned trial court after considering the evidence led during the course of trial including the statements of Tooti Khan (PW2) and Badri Narain (PW8) convicted and sentenced the accused appellant for the charges levelled against him vide impugned judgment dated 18.02.2013. The accused appellant aggrieved and dissatisfied with the impugned judgment of conviction and sentence has preferred instant criminal appeal. 4. Mr. Biri Singh Sinsinwar Sr. Counsel assisted with Mr. Rajesh Choudhry, learned counsel appearing for the accused appellant has argued that the learned trial court has erred in relying upon the statements of prosecution witnesses which were recorded in the case of Co-accused persons. The valuable right of the appellant of cross-examining those witnesses has been snatched away by the learned trial court. The evidence which was recorded in the case of appellant can be a basis of his conviction and other evidence recorded earlier cannot be taken into consideration for convicting the accused appellant. Sr. The valuable right of the appellant of cross-examining those witnesses has been snatched away by the learned trial court. The evidence which was recorded in the case of appellant can be a basis of his conviction and other evidence recorded earlier cannot be taken into consideration for convicting the accused appellant. Sr. Counsel argued that the injury No. 7 was fatal and the allegation for the said injury is against the accused appellant. The doctor has specifically stated that the deceased died on account of the head injury which was attributed to Co-accused and to the appellant. Sr. Counsel argued that the learned trial court has to look into the legal evidence and it cannot sway by the nature of offence which the accused is alleged to have committed. In the instant case there is no such legal evidence against the accused appellant to connect him with the crime. 5. Learned Public Prosecutor appearing for the State opposed the appeal and supported the impugned Judgment of conviction passed by the learned trial court. Learned Public Prosecutor argued that Co-accused Ram Singh was tried first and he was convicted and sentenced by the learned trial court for the offence under sections 302/34 IPC vide Judgment dated 07.08.1984. Against the aforesaid Judgment, Co-accused Ram Singh preferred D.B. Criminal Jail Appeal which was registered at No. 584/1984. This Court vide Judgment dated 05.12.1986 dismissed the criminal appeal and upheld the Judgment of conviction and sentence dated 07.08.1984 passed by the learned trial court. 6. We have considered the submissions made by learned counsel for the appellant and learned Public Prosecutor and carefully scanned the material on record, exhibits and the deposition of witnesses. 7. Dr. Sri Kishan Garg (PW7) examined the injuries of Kappor Singh at 9:25 P.M on 13.07.1983 and recorded following injuries in injury report (Ex.P10). After about twenty minutes Kapoor Singh succumbed to the injuries and thereafter autopsy of the dead-body was conducted by Dr. Sri Krishan Garg. On opening of the body following internal injuries were found on the body of deceased Kapoor Singh:- (1) Lacerated wound 8 c. x cm. x cm. rt. Humerus upper ? ant. Lat. Surface. (2) Bruise 12 cm. x 3 cm. rt. Humerus in middle part ant. Laterally with free mobility. (3) Incise wound 7 cm. x 2 cm. x 1 cm. rt. Eye brow in middle and above. x cm. rt. Humerus upper ? ant. Lat. Surface. (2) Bruise 12 cm. x 3 cm. rt. Humerus in middle part ant. Laterally with free mobility. (3) Incise wound 7 cm. x 2 cm. x 1 cm. rt. Eye brow in middle and above. (4) Incised wound 4 cm. x 1 cm. x cm. rt cheeck. (5) Incised wound 8 cm. x 1 cm. x 2 cm. scalp occipito parietal region left side. (6) Incised wound 6 cm. x 2 cm. x 1 c. mid-occipital region posteriorly. (7) Incised wound 7 cm. x 2 cm. x 3 cm. right occipital bone mid part. (8) Incised wound 4 cm. x 1 cm. x cm. on scalp 2 cm. above rt. Ear. (9) Incised wound 4 cm. x 3 cm. x cm. left palm proximal part in mid region." 8. Dr. Sri Krishan Garg (PW7) proved the Postmortem Report (Ex.P11). According to Dr. Sri Krishan Garg (PW7), there were nine injuries on the body of Kapoor Singh. Four internal injuries were found. The cause of death of Kapoor Singh was shock and hemorrhage, on account of external injury No. 7, as well as the various other injuries. 9. The prosecution case is based on the statements of three eye-witnesses; Pritam Singh (PW2), Tooti Khan, (the statement of Tooti Khan was recorded by the learned trial court during the course of trial of co-accused Ram Singh, which was recorded as PW2) and Harnam Singh (PW1). Complainant Pritam Singh (PW2) deposed that Kapoor Singh was his brother. On 13.07.1983, Kapoor Singh was murdered by Ram Singh, Bagga Singh, Kala Singh @ Ranjeet Singh. Ram Singh was having Kasiya, Bagga Singh was having farsi and Kala Singh was having lathi, in their hands. Bagga Singh and Ram Singh inflicted injuries on the person of deceased Kapoor Singh by farsi and Kasiya and Kala Singh on the shoulder by lathi. Tooti Khan (PW2) deposed that he knows Kapoor Singh. In the evening at 6-6:30 P.M he was grazing his she-goats near his 'Baithak'. Kapoor Singh was coming towards hillock (pahadi) side alone. Bagga Singh (accused appellant), Ram Singh and Kala Singh armed with farsi, kasiya and lathi met him on the way. Tooti Khan (PW2) deposed that he knows Kapoor Singh. In the evening at 6-6:30 P.M he was grazing his she-goats near his 'Baithak'. Kapoor Singh was coming towards hillock (pahadi) side alone. Bagga Singh (accused appellant), Ram Singh and Kala Singh armed with farsi, kasiya and lathi met him on the way. Ram Singh inflicted 'kasiya' blow on the neck of Kapoor Singh, Kala Singh inflicted lathi blow on the right hand of deceased Kapoor Singh and accused appellant Bagga Singh inflicted farsi blow on the head of deceased Kapoor Singh. After giving beatings, these persons ran away to the village. Thereafter Pritam Singh (PW2) brought cot from the home and took Kapoor Singh on the cot. From the spot, one lathi and one pair of sleeper (Ex.P4) were seized. In cross-examination Tooti Khan (PW2) deposed that Pritam Singh (PW2) was returning with she-goats from the field, there was a gap of 40 steps in between Kapoor Singh and Pritam Singh (PW2). Kapoor Singh was given beatings first of all by Bagga Singh (accused appellant) by 'farsi' on the center of his head and afterwards Ram Singh inflicted kasiya blow on his neck. Kapoor Singh fell down on the ground due to injuries inflicted by Bagga Singh (accused appellant). When Harnam Singh (PW1) came, accused were on the way. Harnam Singh (PW1) in the statement (Ex.P14) recorded before the Court on 27.07.1984 deposed that Ram Singh was having kasiya, Bagga Singh was having farsi, and Kala Singh was having lathi, in their hands. Ram Singh inflicted kasiya blow on the neck, hand and head of deceased Kapoor Singh, Bagga Singh inflicted farsi blow on the head and Kala Singh inflicted lathi blow on the hand. 10. Tooti Khan (PW2) and Harnam Singh (PW1) are totally independent witnesses and nothing has come in their cross-examination so as to say that they had any enmity with the accused persons so as to falsely implicate them in the case. The statement of Pritam Singh (PW2) is quite natural that he was returning back with his brother Kapoor Singh after ploughing their fields and all the three accused persons had attacked Kapoor Singh and inflicted injuries by sharp edged weapon like Kasia, farsi and lathi. Pritam Singh (PW2) had lodged an oral report in the Police Station Kishangarbas on the basis of which FIR (Ex.P1) was recorded at 10:00 P.M. on 13.07.1983 itself. Pritam Singh (PW2) had lodged an oral report in the Police Station Kishangarbas on the basis of which FIR (Ex.P1) was recorded at 10:00 P.M. on 13.07.1983 itself. Badri Narain (PW8) was the Police Officer In-charge in Police Station, Kishangarhbas and he has also proved FIR (Ex.P1) having been recorded on the basis of oral report lodged by Pritam Singh (PW1). 11. The oral evidence of the above-mentioned three eye-witnesses finds full corroboration by the evidence of Dr. Sri Krishan Garg (PW7), who has proved the injury report (Ex.P10) and the Postmortem Report (Ex.P11). The nature of injuries seen and entered in the injury report (Ex.10) and post-mortem report (Ex.P11) clearly show that such injuries could have been caused by the weapons, like kasia and farsi and lathi, which are alleged to be in the hands of the three accused persons. Except some minor discrepancies in the statements of the eyewitnesses on the point as to which of the three accused persons had assaulted Kappor Singh first in the occurrence, there is no other infirmity in their statements. Such minor discrepancies are bound to occur in the statements of truthful witnesses. 12. In view of the above observations, we find that the prosecution has proved that the accused appellant has caused death of the deceased, by adducing cogent and reliable evidence, beyond all reasonable doubts. 13. In the result, the instant criminal appeal filed by the accused appellant is bereft of merit and accordingly stands dismissed. The Judgment of conviction and sentence dated 18.02.2013 passed by learned Addl. Sessions Judge No. 1, Kishangarhbas (Alwar) in Sessions Cases No. 54/2011 is affirmed.