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2019 DIGILAW 2012 (RAJ)

Bhanwar Singh v. State of Rajasthan

2019-07-20

ABHAY CHATURVEDI, SANDEEP MEHTA

body2019
JUDGMENT 1. The appellant herein stands convicted and sentenced as below vide the judgment dated 08.07.2016 passed by the learned Additional Sessions Judge, Rajsamand in Sessions Case No.36/2014 (F.I.R. No.344/2013, Police Station Bheem) : Offence for which convicted Sentence awarded Section 341 IPC Three months' simple imprisonment alongwith a fine of Rs.500/- and in default of payment of fine, further to undergo 5 days' additional simple imprisonment Section 323 IPC Six months' simple imprisonment alongwith a fine of Rs.1000/- and in default of payment of fine, further to undergo ten days' additional simple imprisonment Section 302 IPC Life term imprisonment alongwith a fine of Rs.10,00/- and in default of payment of fine, further to undergo six months' additional rigorous imprisonment 2. All the sentences were ordered to run concurrently. 3. Being aggrieved of his conviction and sentence, the appellant has preferred the instant appeal under Section 374 (2) CrPC. 4. The brief facts relevant and essential for disposal of the appeal are noted hereinbelow. 5. Sohan Singh S/o Kishan Singh lodged a written report (Ex.P/1) at the Police Station Bheem, District Rajsamand on 15.11.2013 at 12.15 p.m. alleging inter alia that on 13.11.2013 in the night at about 10.00 to 10.30 p.m., his father Kishan Singh, aged 68 years, was returning to their village Biliyawas from Kotada, where he had gone to attend a marriage with his grandson Govind Singh. Prior to his father's return to the village, a quarrel had taken place between Bhanwar Singh S/o Heera Singh and the two brothers of the informant, i.e. Madan Singh and Jitendra Singh. Kishan Singh reached in front of the house of Bhanwar Singh, who was hurling abuses towards Sohan Singh and his brothers Madan Singh and Jitendra Singh. His father asked Bhanwar Singh as to why he was hurling abuses, on which, Bhanwar Singh exhorted that he had already beaten two and that he also would meet the same fate. Saying so, Bhanwar Singh brought a Kassi (Kudali) and started assaulting Kishan Singh. He inflicted blows of Kassi on the back and head of Kishan Singh. The first informant, his brothers Madan Singh and Jitendra Singh, mother Laxmi and his son Govind Singh intervened and tried to save Kishan Singh, who received grievous injuries on the head. Saying so, Bhanwar Singh brought a Kassi (Kudali) and started assaulting Kishan Singh. He inflicted blows of Kassi on the back and head of Kishan Singh. The first informant, his brothers Madan Singh and Jitendra Singh, mother Laxmi and his son Govind Singh intervened and tried to save Kishan Singh, who received grievous injuries on the head. He was taken to Beawar Hospital in the morning of 14.11.2013, from where, looking at his serious condition, he was referred to Ajmer and Jaipur. Kishan Singh was under treatment at the SMS, Hospital, Jaipur, where he expired in the night time. On the basis of this report, an FIR No.344/2013 was registered at the Police Station Bheem for the offences under Section 341, 323 and 302 IPC and investigation was commenced. The Investigating Officer, carried out the routine investigation involving preparation of site inspection plan, Panchnama of the dead body, seizure of blood stained soil etc. The dead body of Kishan Singh was got subjected to postmortem through a medical board constituted at the SMS Hospital, Jaipur. The board issued its report (Ex.P/21) opining that the cause of death of Kishan Singh was coma induced by the antemortem head injury, which was sufficient in the ordinary course of nature to cause death. The two injured Jitendra Singh and Madan Singh were also got medically examined. At this point, it would be relevant to note that the accused Bhanwar Singh and his wife Sarita also received injuries during the incident and an FIR No.343/2013 (Ex.D/2) was registered against the complainant party at the instance of the accused at the Police Station Bheem for the offences under Sections 143, 452 and 323 IPC. During the course of investigation of the said FIR, the accused Bhanwar Singh and his wife Smt. Sarita were medically examined. 6. The Investigating Officer arrested the accused Bhanwar Singh and claims to have effected recovery of iron Kassi at his instance after recording his information under Section 27 of the Evidence Act. After concluding the investigation, a charge-sheet came to be filed against the accused appellant Bhanwar Singh for the offences under Sections 341, 323 and 302 IPC. 7. Since the offence under Section 302 was Sessions triable, the case was committed to the Court of Sessions Judge, Rajsamand, who framed charges against the accused for the above offences. The accused pleaded not guilty and claimed trial. 7. Since the offence under Section 302 was Sessions triable, the case was committed to the Court of Sessions Judge, Rajsamand, who framed charges against the accused for the above offences. The accused pleaded not guilty and claimed trial. While the trial was underway, the case was transferred to the Court of Additional Sessions Judge, Rajsamand. As many as 18 witnesses were examined and 34 documents were exhibited by the prosecution to prove its case. The accused was questioned under Section 313 CrPC and upon being confronted with the circumstances appearing in the prosecution evidence, he claimed to have been falsely implicated and took a pertinent plea that he was beaten by the members of the complainant party. Three witnesses including the accused himself were examined in defence. After hearing the arguments advanced by the prosecution and the defence and appreciating the evidence available on record, learned trial court proceeded to convict and sentence the appellant as above by the impugned judgment dated 08.07.2016. Hence, this appeal. 8. In the quest to seek acquittal for the appellant, Mr. T.R.S. Sodha, learned counsel representing the appellant, put forth the following submissions :- 1. That the FIR was lodged after a significant delay of two days, for which no plausible explanation was offered by the prosecution. 2. That the prosecution is guilty of suppressing the genesis of occurrence. The incident took place in front of the house of the accused. The accused and his wife suffered large number of injuries, for which no plausible explanation has been given by the prosecution witnesses. 3. That the recovery of the Kassi (Kudali) made the instance of the appellant is falsified by the evidence of the material prosecution witnesses, viz. Sohan Singh (P.W.1) and Madan Singh (P.W.5). As per him, the fact stated by Madan Singh in his evidence that Sohan Singh snatched the Kassi from Bhanwar Singh and brought the same to their house clearly demolish the prosecution theory that the Kassi used for committing the offence was recovered at the instance of the appellant. 4. The alternative submission of Mr. As per him, the fact stated by Madan Singh in his evidence that Sohan Singh snatched the Kassi from Bhanwar Singh and brought the same to their house clearly demolish the prosecution theory that the Kassi used for committing the offence was recovered at the instance of the appellant. 4. The alternative submission of Mr. Sodha was that as the injuries of the accused were not explained, an adverse inference deserves to be drawn against the prosecution witnesses and the conviction of the accused appellant deserves to be toned down from the charge under Section 302 IPC to one under Section 304 Part II IPC because as per him, even if the prosecution case is accepted to be true on the face of the record, the accused, while inflicting injuries to the deceased was clearly acting in the exercise of right of private defence of his own self and of his wife. If in this process, he caused more harm than that was necessary, the accused can at best be held guilty for the charge under Section 304 Part II IPC. 9. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellant's counsel. He urged that the accused appellant assaulted the deceased Kishan Singh, aged 68 years, without any cause or justification. Earlier the accused had assaulted Madan Singh and Jitendra Singh, two sons of the deceased. Thereafter, he was hurling foul abuses at the complainant party. The deceased simply asked him the reason for the abuses, on which, without being provoked, the accused became offensive and brutally assaulted the deceased by a Kassi, which is a dangerous weapon. Learned Public Prosecutor submitted that the delay in lodging the FIR is well-explained because the family members of the deceased got busy in getting him treated. No sooner the news of his passing away was conveyed, Sohan Singh went to lodge the report at the Police Station Bheem. He, thus, implored the court to affirm the impugned judgment and dismiss the appeal. 10. We have given our thoughtful consideration to the submissions advanced at bar and re-appreciated the evidence available on record. 11. The following facts are noticeable from the evidence led before the trial court. 12. He, thus, implored the court to affirm the impugned judgment and dismiss the appeal. 10. We have given our thoughtful consideration to the submissions advanced at bar and re-appreciated the evidence available on record. 11. The following facts are noticeable from the evidence led before the trial court. 12. The incident took place on 13.11.2013 in front of the house of the accused at about 10.00-10.30 p.m. Three persons from the complainant side, i.e. Madan Singh, Jitendra Singh and Kishan Singh were injured, whereas the accused himself and his wife Smt. Sarita also received numerous injuries in the same incident, which appears to have occurred in two parts. 13. The prosecution has claimed that the incident took place in two parts. In the first section, the accused allegedly assaulted Madan Singh (P.W.5) and Jitendra Singh (P.W.12) and caused them simple injuries. It is stated that after the first incident was over, the accused was standing outside his house and was hurling abuses. Kishan Singh, while returning from a marriage had reached in front of the house of the accused and he asked as to the reason of hurling abuses, on which, the second part of the incident precipitated, wherein, the accused allegedly assaulted the deceased by a Kassi. During this process, the accused himself and his wife Smt. Sarita were caused a significant number of injuries. While the injuries of the accused were proved by the prosecution witness Dr. Narendra Kumar (P.W.9), the injury report of Sarita (Ex.D/10) was proved by the injured herself. She received five bruises all over the body. The injury No.6 located on the wrist of the accused appellant turned out to be grievous in nature upon x-ray examination. The accused Bhanwar Singh lodged the FIR No.343/2013 against the complainant party prior in time. The said FIR was proved at the trial as Ex.D/2. 14. We summoned the report regarding outcome of the said case from the court concerned and have received the report to the effect that the case resulted into conviction of Jitendra Singh for the offence under Section 341, 323 and 325 IPC vide judgment dated 08.07.2016 and he was directed to be released on probation after recording his conviction. 15. 14. We summoned the report regarding outcome of the said case from the court concerned and have received the report to the effect that the case resulted into conviction of Jitendra Singh for the offence under Section 341, 323 and 325 IPC vide judgment dated 08.07.2016 and he was directed to be released on probation after recording his conviction. 15. Manifestly, the FIR of the case at hand came to be lodged after significant delay on 15.11.2013 at 12.15 p.m. Sohan Singh, the first informant and the other prosecution witnesses tried to offer a lame explanation for the delay claiming that the family members got busy in the treatment of Kishan Singh and that is why, the FIR could not be lodged in time. However, a bare perusal of the evidence of Sohan Singh reveals that on the morning next to the incident, he went to the school, whereas the other family members, viz. Madan Singh, Jitendra Singh, Laxmi and Prabhu Singh, took Shri Kishan Singh to the Beawar Hospital. Thus, Sohan Singh, who claims to be an eye-witness of the incident, had ample opportunity to lodge a prompt report at the Police Station Bheem, but he failed to do so. The natural inference which has to be drawn from these facts is that, whilst the report lodged by the accused is prompt, there is no plausible explanation for the delayed report lodged by the prosecution. 16. Law is well-settled that where the accused receives significant injuries in an incident, the prosecution is under an obligation to explain the same. As mentioned above, in the case at hand, the accused appellant Bhanwar Singh received no less than six injuries on his body, out of which, one on the wrist was opined to be grievous. His wife Smt. Sarita received five injuries. Pertinent cross-examination was made from the prosecution eyewitness regarding the injuries caused to the accused, but no plausible explanation was offered by them. 17. Though the informant Sohan Singh tried to explain the injuries of the accused claiming that the accused banged his own head and body on the wall and received the injuries thereby, but ex facie, no such fact is stated by any of the other prosecution witnesses, viz. Govind Singh (P.W.3), Laxmi (P.W.4), Madan Singh (P.W.5), Pusha Devi (P.W.11) and Jitendra Singh (P.W.12). 18. Govind Singh (P.W.3), Laxmi (P.W.4), Madan Singh (P.W.5), Pusha Devi (P.W.11) and Jitendra Singh (P.W.12). 18. Regarding the recovery of the Kassi, it needs to be stated that Madan Singh (P.W.5) categorically stated that when they intervened to save Kishan Singh from the accused, Sohan Singh snatched the Kassi and thereafter the weapon alongwith the injured were carried to their house. Thus, the recovery of the Kassi shown to be made at the instance of the accused appellant is falsified. 19. Dr. Deepali Pathak (P.W.13) was the member of the medical board at the SMS Hospital, Jaipur, which conducted postmortem on the body of the deceased Kishan Singh. The board noticed as many as four injuries on his person, out of which, the injury No.1 on the head and the injury No.4 on the chest were found to be grievous in nature and were opined as sufficient to cause death in the ordinary course of nature. Manifestly, thus, there is no escape from the conclusion that the prosecution has suppressed the genesis of the occurrence. Not only this, the prosecution did not offer any explanation whatsoever for the significant injuries caused to the accused and his wife. The accused has taken a pertinent plea of right of defence of his own person and that of his wife and we are convinced that the submission of the defence counsel that the injuries to deceased Kishan Singh were unquestionably inflicted by the accused while he was trying to save himself and his wife from the offensive members of the complainant party. For reaching to this conclusion, we are gainfully supported by the following observations made by the Hon'ble Supreme Court in the case of Laxmi Singh & Ors. Vs. State of Bihar, (1976) AIR SC 2263 . "In a situation like this when the prosecution fails to explain the in juries on the person of an accused, depending on the facts of each case, any of the three results may follow: (1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence. (2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt. (3) It does not affect the prosecution case at all. (2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt. (3) It does not affect the prosecution case at all. The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgment. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case. It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences: (1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version: (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the Court to rely on the evidence of PWs. 1 to 4 and 6 more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. 1 to 4 and 6 more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima, (1975) CriLJ 1079 : Criminal Appeal No. 67 of 1971 decided on March 19, 1975, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises." 20. The witnesses examined by the prosecution to prove the case are all interested witnesses. Since multiple factors noticed hereinabove create a significant doubt on their testimony, we are of the opinion that it is a fit case wherein, the specific plea of private defence raised by the accused has to be acceded. However, considering the fact that the accused inflicted multiple injuries to an old man aged 68 years by a dangerous implement like a Kassi, he definitely used more force than what was necessary and thus, exceeded the right of private defence conferred upon him by the law. Furthermore, we are convinced that as it is the deceased, who was passing by the house of the accused and he voluntarily stopped and questioned the accused, the ingredients of Section 341 are definitely not made out against the accused. It is our firm opinion that the trial court committed grave error in facts as well as in law while convicting and sentencing the appellant as above vide the judgment dated 08.07.2016, which does not stand to scrutiny. 21. In wake of the discussion made hereinabove, the appeal is partly allowed. The impugned judgment is modified. It is our firm opinion that the trial court committed grave error in facts as well as in law while convicting and sentencing the appellant as above vide the judgment dated 08.07.2016, which does not stand to scrutiny. 21. In wake of the discussion made hereinabove, the appeal is partly allowed. The impugned judgment is modified. The conviction of the appellant as recorded by the trial court for the offences under Sections 341 IPC and Section 302 IPC is set aside. The charge under Section 302 IPC is toned down and instead, the appellant is convicted for the offence under Section 304 Part II IPC and is sentenced to the period already undergone by him [which is nearly 51/2 years] and fine to the tune of Rs.10,000/-and in default of payment of fine, further to undergo two months' rigorous imprisonment. The conviction and sentence awarded to the appellant for the offence under Section 323 IPC is maintained. The appellant shall be released from custody forthwith upon depositing the amount of fine, if not wanted in any other case. 22. However, keeping in view the provisions of Section 437- A CrPC, the accused appellant is directed to furnish a personal bond in the sum of Rs.40,000/- and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the appellant shall appear before the Supreme Court.