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2019 DIGILAW 2714 (RAJ)

Keshar Singh v. State of Rajasthan

2019-10-21

ABHAY CHATURVEDI, SANDEEP MEHTA

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JUDGMENT : Sandeep Mehta, J. The appellant herein has been convicted and sentenced as below vide judgment dated 05.08.2015 passed by the learned Additional Sessions Judge, Parbatsar, District Nagaur in Sessions Case No.64/2011 (67/2014): Offences Sentences Fine Fine Default sentences Section 302 IPC Life Imprisonment Rs.5,000/- 1 Month's S.I. Section 341 IPC 1 Month's S.I. Both the substantive sentences were ordered to run concurrently. 2. Being aggrieved of his conviction and sentences, the appellant has preferred the instant appeal under Section 374(2) Cr.P.C. 3. Brief facts relevant and essential for disposal of the appeal are noted herein below: 4. Dhan Singh (PW-1) lodged a typed report (Ex.P/1) to the SHO, Police Station Makrana, District Nagaur on 11.07.2011 at 05.15 pm. alleging inter alia that on the same day at about 2 O' Clock in the afternoon, Jitendra Singh son of Sher Singh was coming out of his house when the appellant Keshar Singh armed with a knife, Vikram Singh son of Keshar Singh armed with an axe, Santosh Kanwar wife of Keshar Singh armed with a lathi, Gulab Kanwar armed with a lathi, Bajrang Singh @ Bholu son of Keshar Singh armed with a knife, all came around in a white coloured Marshall Jeep and launched a consorted attack on Jitendra. The ladies also assaulted Jitendra with lathis. Owing to the assault, the intestine of Jitendra Singh spilled out. The informant tried to intervene on which, Vikram Singh gave him an axe blow on the head and the others hit him on the back. He shouted on which, Jai Kanwar wife of Bhanwar Singh, Pradeep Singh son of Bhanwar Singh and Om Kanwar wife of Dhan Singh intervened and saved him from the assailants. Jitendra was taken to the Makrana Hospital for treatment from where, he was referred to Ajmer but on the way, Jitendra breathed his last. On the basis of the report aforesaid, an FIR No.197/2011 (Ex.P/39) came to be registered at the Police Station Makrana. The investigation was assigned to Ladu Singh (PW-20) S.I. posted at Police Station Makrana. Jitendra was taken to the Makrana Hospital for treatment from where, he was referred to Ajmer but on the way, Jitendra breathed his last. On the basis of the report aforesaid, an FIR No.197/2011 (Ex.P/39) came to be registered at the Police Station Makrana. The investigation was assigned to Ladu Singh (PW-20) S.I. posted at Police Station Makrana. He undertook the requisite steps during investigation and prepared the following documents: (i) Fard Surathaal Lash of deceased Jitendra Singh- Ex.P/9, (ii) Panchayatnama of the dead body of Jitendra Singh Ex.P/3, (iii) Memorandum of handing over the dead body of deceased Jitendra Singh Ex.P/10, (iv) Seizure memo of clothes of the deceased Jitendra Singh Ex.P/14, (v) Site Inspection Memo Ex.P/2, (vi) Seizure memo of blood stained marble piece from the place of occurrence- Ex.P/4, (vii) Seizure memo of blood stained soil from the place of occurrence- Ex.P/5, (viii) Seizure memo of control soil- Ex.P/6, (ix) Seizure memo of glass bangles pieces and chain of small pearls - Ex.P/7, 5. Thereafter, he recorded the statements of various witnesses viz. Dhan Singh- first informant, Bhanwar Kanwar, Om Kanwar, Pradeep Singh and Bhagwana Ram under Section 161 Cr.P.C. The articles seized from the place of incident were deposited in the Maalkhana. The accused Keshar Singh was arrested on 11.07.2011 vide arrest memo (Ex.P/26) and the accused Santosh Kanwar was arrested vide arrest memo (Ex.P/27). Keshar Singh gave an information to the I.O. under Section 27 of the Evidence Act which was recorded in memorandum (Ex.P/28) regarding concealment of the knife used to stab Jitendra Singh in his house. The accused Santosh Kanwar also gave an information to the I.O. under Section 27 of the Evidence Act which was recorded in memorandum (Ex.P/29) and acting in furtherance whereof, the I.O. got recovered a lathi. The postmortem report of the deceased Jitendra Singh and the injury report of the injured Dhan Singh were collected and taken on record. Having undertaken these steps of investigation, Shri Ladu Singh handed over the file to Ram Chandra (PW-18), SHO, Police Station Makrana. Finally, a charge-sheet came to be filed against the accused appellant and Smt. Santosh Kanwar for the offences under Sections 341, 302 and in the alternative Section 120B read with Section 302 and Section 323 of the IPC. Having undertaken these steps of investigation, Shri Ladu Singh handed over the file to Ram Chandra (PW-18), SHO, Police Station Makrana. Finally, a charge-sheet came to be filed against the accused appellant and Smt. Santosh Kanwar for the offences under Sections 341, 302 and in the alternative Section 120B read with Section 302 and Section 323 of the IPC. As the offence under Section 302 IPC was Sessions triable, the case was committed to the court of the Additional Sessions Judge, Parbatsar who framed charges against the accused for the aforesaid offences. The prosecution examined as many as 21 witnesses and exhibited 39 documents to prove its case. Upon being questioned under Section 313 Cr.P.C. and when confronted with the prosecution allegations, the accused denied the same and claimed to have been falsely implicated. Smt. Santosh Kanwar took a plea that she had returned to Peelwa from Borawar. Bhanwar Kanwar, Om Kanwar and the other members of the complainant party started hurling abuses on them. She sent her son Bholu @ Bajrang Singh to bring milk for preparing tea. Jitendra Singh assaulted Bholu by a knife who snatched the knife from Jitendra Singh and hit him in self defence and that the case had been falsely foisted. 14 documents were exhibited but no oral evidence was led in defence. After hearing the arguments advanced by the learned Public Prosecutor and the defence counsel and, appreciating the evidence available on record, the learned trial court, proceeded to convict and sentence the appellant as above. Hence this appeal. 6. Learned counsel Shri Pradeep Shah representing the appellant, vehemently and fervently urged that the entire prosecution case is false and fabricated. The genesis of occurrence has been suppressed by the prosecution. The informant Dhan Singh lodged the FIR by naming five persons as the assailants. Three of them, namely Keshar Singh, Vikram Singh and Bajrang Singh were attributed sharp edged weapons in their hands. However, as per the postmortem report of Jitendra Singh (Ex.P/17), only a solitary wound was noticed on his abdomen which proved fatal. The informant Dhan Singh lodged the FIR by naming five persons as the assailants. Three of them, namely Keshar Singh, Vikram Singh and Bajrang Singh were attributed sharp edged weapons in their hands. However, as per the postmortem report of Jitendra Singh (Ex.P/17), only a solitary wound was noticed on his abdomen which proved fatal. He urged that the injury of Dhan Singh could have been caused in a fall and thus, as per Shri Shah, not only, has the prosecution indulged in wholesale over-implication but, in addition thereto, even the manner in which, the incident actually happened has been concealed and intentionally a coloured version of the incident has been portrayed by the witnesses. Referring to the statements of the eye-witnesses Dhan Kanwar, Om Kanwar, etc., Shri Shah drew the Court's attention to the site inspection plan (Ex.P/2) and urged that even the place of incident has clearly been changed by the prosecution. He further contended that three of the accused persons named in the FIR and the statements of the material eye witnesses were neither charge-sheeted nor were they summoned to face trial along with the charge-sheeted accused. As per Shri Shah, the prosecution evidence as against all the accused is almost identical, and since the other three have been exonerated, the entire prosecution case has to be disbelieved and thrown out. His alternative submission was that the prosecution has grossly concealed the genesis of occurrence. Shri Shah submitted that motive behind the alleged occurrence was rather entertained by the members of the complainant party. Referring to the statements of Dhan Singh (PW-1), Bhanwar Kanwar (PW-2), Om Kanwar (PW-3), Shri Shah contended that both the witnesses alleged that the accused persons were responsible for filing a complaint regarding Chandra Kanwar daughter of Dhan Singh being married off even though she was a minor. Shri Shah, submitted that if at all, there is any truth in this allegation, manifestly, the grudge if any would be borne by the complainant party and not the accused. He further submitted that the presence of broken pieces of bangles and a pearl necklace at the spot is a circumstance which conclusively establishes that the incident must not have taken place in the manner alleged by the prosecution witnesses and that rather, it is a case of free-fight between the parties with the complainant party acting as the aggressor. He further submitted that the presence of broken pieces of bangles and a pearl necklace at the spot is a circumstance which conclusively establishes that the incident must not have taken place in the manner alleged by the prosecution witnesses and that rather, it is a case of free-fight between the parties with the complainant party acting as the aggressor. He thus urged that if during the course of a free-fight, the accused Keshar Singh, inflicted a solitary knife blow to the deceased Jitendra Singh, the offence if any would not travel beyond Section 304 Part II IPC. He thus, implored the Court to accept the appeal; set aside the impugned judgment and either acquit the accuse appellant of all the charges or to suitably tone down the conviction of the accused. 7. Per contra, learned Public Prosecutor and the learned counsel representing the complainant vehemently and fervently opposed the submissions advanced by the appellant's counsel. They urged that the accused party were bearing ill-will against the complainant party. Firstly, they tried to disrupt the wedding of Chandra Kanwar daughter of Dhan Singh by filing a false complaint to the District Collector regarding her being a minor. Thereafter, when the complaint was found to be false, the accused became flustered and tried to wreak vengeance in a different manner. No sooner, they had come to the village, they started hurling abuses at the family members of the complainant party. Jitendra Singh had causally gone out of his house when he was restrained and the accused Keshar Singh inflicted a knife blow on his abdomen. They urged that the fact regarding the deceased having been inflicted a fatal knife blow on the abdomen is duly established by the postmortem report and the medical evidence. As per them, simply because, the three accused named in the FIR were not charge-sheeted and one of them has been acquitted, that by itself, cannot discredit the prosecution case as against the accused appellant because the prosecution witnesses have stood firm in cross-examination regarding the specific role attributed to the appellant. On these grounds, they implored the Court to dismiss the appeal and affirm the conviction of the appellant. 8. We have given our thoughtful consideration to the submissions advanced at Bar; perused the impugned judgment and have minutely re-appreciated the evidence available on record. 9. On these grounds, they implored the Court to dismiss the appeal and affirm the conviction of the appellant. 8. We have given our thoughtful consideration to the submissions advanced at Bar; perused the impugned judgment and have minutely re-appreciated the evidence available on record. 9. On going through the statements of of Dhan Singh (PW-1) Bhanwar Kanwar (PW-2), Om Kanwar (PW-3), Pradeep Singh (PW4) and Kamla Devi (PW-5), it is clear that these witnesses levelled a consistent allegation that the accused party first tried to put a damper in the wedding of Chandra Kanwar daughter of Dhan Singh by filing a false complaint to the Collector that the girl was minor. When the complaint was found to be false, the accused tried to wreak vengeance in a different manner. On the date of the incident, the accused party came back to the village. Manifestly, they must have found out that their complaint had failed and thus, the possibility of them feeling frustrated by the failure, definitely existed. While the abuses were being exchanged between the parties, Jitendra Singh came out of the house. As per the above mentioned prosecution witnesses, Gulab Kanwar and Santosh Kanwar caught hold of Jitendra Singh and Keshar Singh inflicted the solitary knife blow on his abdomen. It is further alleged that when Dhan Singh tried to intervene, Vikram Singh Singh gave him an axe blow on the head. PW-5 Smt. Kamla is an independent witness. She too fortified the version of the related witnesses and stated that Keshar Singh stabbed Jitendra Singh with a knife. There was no occasion for this witness to falsely implicate the accused appellant Keshar Singh in the incident because she is not related to either of the parties in any manner. The defence theory which was portrayed by Shri Shah that the Bholu @ Bajrang son of Santosh Kanwar was going out to bring milk and that Keshar Singh assaulted him by a knife and that Bholu snatched the knife from his hand and gave him a blow thereof in self defence/retaliation, is totally fictitious and untenable in our opinion. The witnesses referred to above have stood firm in their cross-examination and did not falter when this defence theory was suggested to them by the defence counsel. The witnesses referred to above have stood firm in their cross-examination and did not falter when this defence theory was suggested to them by the defence counsel. The prosecution allegation that while Jitendra was being assaulted by the members of the complainant party, Dhan Singh tried to intervene and in the process, Vikram Singh gave him a blow by the axe on his head, is corroborated by the injury report of Dhan Singh (Ex.P/16) as per which, a bone deep lacerated wound admeasuring 4 cm. X 0.5 cm. was noticed on his occipital region. Manifestly, this kind of injury is possible by the reverse side of the axe. In our opinion, Vikram Singh should also have been prosecuted in the case but for reasons not known, no such steps was taken. Though the defence gave a suggestion to the material prosecution witnesses regarding the fatal injury having been inflicted to the deceased by Bholu in defence but when we examine the statement of the accused Keshar Singh and the acquitted accused Santosh Kanwar, it is clear that she did take such plea but appellant Keshar Singh never stated anything of the sort in his defence. True it is that the prosecution case has to stand on its own legs and the weakness in the defence cannot be made a foundation for convicting the accused but, when upon minutely examining the evidence of the material prosecution witnesses, we are convinced that they have given cogent, clinching and convincing evidence implicating the accused. The appellant gave the fatal knife blow on the abdomen of Jitendra Singh and this allegation is duly corroborated by Dr. Bhagwan Agrawal (PW-15) who proved the postmortem report as per which, a spindle shaped wound admeasuring 3.5X1x1 cm. deep upto the abdominal cavity was noticed on the deadbody. The intestine and the membranes had prolapsed out of wound. The liver and the intestine were totally damaged by the blow. In our firm opinion, the injury which has been described by the doctor, was undoubtedly sufficient in the ordinary course of nature to cause death. deep upto the abdominal cavity was noticed on the deadbody. The intestine and the membranes had prolapsed out of wound. The liver and the intestine were totally damaged by the blow. In our firm opinion, the injury which has been described by the doctor, was undoubtedly sufficient in the ordinary course of nature to cause death. The contention of Shri Shah that the genesis of occurrence had been suppressed because the prosecution did not explain the presence of broken pieces of bangles outside the house of the accused appellant Keshar Singh, is also devoid of merit because no suggestion has been given to any of the prosecution witnesses that the members of the complainant party assaulted any woman member of the accused family whose bangles broke in front of the gate Keshar Singh's house. True it is that looking to the limited number of injuries i.e. one each caused to Jitendra Singh as well as Dhan Singh, the version as deposed by the eye witnesses Dhan Singh (PW-1), Bhanwar Kanwar (PW2), Om Kanwar (PW-3) and Pradeep Singh (PW-4) that all the five accused appellants actively participated in the incident, is not palpable but law is well settled that in India, the principle of "Falsus in uno, falsus in omnibus" does not apply. In our opinion and as extracted from the evidence of the above mentioned eyewitnesses, the most probable sequence of events seems to be in the following manner. The accused had lodged the complaint that Dhan Singh was getting his minor daughter married. The complaint was inquired into and was found to be false. The accused returned to the village Borawar from Peelwa at about 2 O' pm. on the day of the incident. Hot words must have been exchanged between the parties where after, a fight broke out between them. 10. Presence of all the members of the complainant party and the accused party is well established at the scene of occurrence. The incident is clearly of a free fight in which, Jitendra was given a stab blow on the abdomen by the accused Keshar Singh which proved fatal. Though Vikram Singh is alleged to have inflicted an axe blow on the head of Dhan Singh but despite that, he was not charge-sheeted. The incident is clearly of a free fight in which, Jitendra was given a stab blow on the abdomen by the accused Keshar Singh which proved fatal. Though Vikram Singh is alleged to have inflicted an axe blow on the head of Dhan Singh but despite that, he was not charge-sheeted. We are of the view that even if he had been charge-sheeted, he could not have been attributed the common intention of murdering Shri Jitendra Singh because the case is of a free fight in which, the individual role of each accused has to be identified and neither Section 34 nor Section 149 IPC can be applied. The I.O. Ladu Singh (PW-20) has given cogent evidence that the accused Keshar Singh gave him a voluntary information (Ex.P/28) under Section 27 of the Evidence Act and acting in furtherance thereof, the weapon of offence i.e. the knife was recovered. The knife recovered at the instance of the accused which was seized vide seizure memo (Ex.P/28) and the blood stained articles of the deceased were forwarded for the FSL for analysis from where, a report (Ex.P/24) was received with the conclusion that the knife and the blood stained clothes of the deceased tested positive for presence of 'A' Group Human blood. This expert's report establishing presence of the identical blood group on the clothes of the deceased and the knife recovered from the accused lends corroboration to the evidence of the eyewitnesses and the medical evidence. 11. Learned counsel Shri Shah laid much stress on the aspect that the prosecution witnesses are guilty of changing the place of occurrence. In this regard, he referred to the site inspection plancum- site inspection memo (Ex.P.2) and the statements of the eye-witnesses. We have considered the said submission of Shri Shah and found that there is no such grave discrepancy in the site inspection plan vis-a-vis the evidence of the material witnesses. Merely because, the blood stains were found at some distance from the house of the accused Keshar Singh, that by itself, cannot be considered a material circumstance adversely effecting the evidentiary worth of the eye-witnesses account. Merely because, the blood stains were found at some distance from the house of the accused Keshar Singh, that by itself, cannot be considered a material circumstance adversely effecting the evidentiary worth of the eye-witnesses account. It may be stated here that as per the site inspection plan (Ex.P/2), the blood spots were found just in front of the house of Jitendra Singh and thus, the evidence of the eye-witnesses is corroborated by the observations of the I.O. as noted in the site inspection memo rather than contradicting their evidence. In this background, we are not convinced with the submission of Shri Shah that the prosecution witnesses are guilty of changing the place of occurrence. 12. Having appreciated the material available on record, the arguments advanced before us and evaluating the evidence available on record, we are of the firm opinion that the prosecution has proved its case establishing the guilt of the accused beyond all manner of doubt. The impugned judgment dated 05.08.2015 passed by the learned Additional Sessions Judge, Parbatsar, District Nagaur does not suffer from any infirmity, factual or legal, warranting interference therein. 13. Hence the appeal fails as being devoid of merit and is hereby dismissed. 14. Record be returned to the trial court.