Bher Singh s/o Magan Singh & Ors vs State of Rajasthan.

This appeal is directed against judgment dated 20.11.89 passed by the Additional Session Judge, Barmer in Session Case No.22/89, whereby

the accused appellant Bher Singh has been convicted for offence under Section 302 IPC and the accused appellants Ved Singh and Chutar Singh

have been convicted for offence under Section 302/34 IPC and each of them has been sentenced to undergo life imprisonment with fine Rs.500/-;

in default in payment of fine to further undergo two months'' rigorous imprisonment.

In the nutshell, the prosecution story may be summarized thus: On 8.3.89 at around 7 P.M., Shaitan Singh s/o Panney Singh (PW 15) and

Ganpat Singh s/o Amar Singh (PW 17), residents of Dhhokviratra on their way to their home, when reached near the house of Sagat Singh heard

hue and cry at the house of Bher Singh s/o Magan Singh. When both of them went to the house of Bher Singh, they saw Ved Singh, Chutar Singh

and Bher Singh belabouring Bhoor Singh. They intervened and rescued him. Bhoor Singh suffered injuries on head and hands and fell unconscious.

Shaitan Singh and Ganpat Singh brought Bhoor Singh to his home where he vomited and his condition was deteriorated. Shaitan Singh went to

Bhagirath Bishnoi, brought his tractor wherein Bhoor Singh was taken to hospital at Chohtan.

On the basis of the written report (Ex.P/18) and further information supplied by Shaitan Singh (PW 15), the police registered the FIR for

offences under Sections 307, 341, 323 read with Section 34 IPC and the investigation commenced.

Looking at the serious condition of Bhoor Singh, he was referred from the hospital at Chohtan to hospital at Barmer. On 9.3.89, Bhoor Singh

succumbed to the injuries.

During the investigation, necessary memos were prepared. Accused persons were arrested and at the instance of accused Bher Singh, lathi was

recovered. The blood smeared soil, pure soil and blood stained bushirt of Bhoor Singh were sent for examination to the Forensic Science

Laboratory. It appears that no FSL report was obtained.

After completion of the investigation, the police filed the charge sheet against the accused appellant Bher Singh for offence under Section 302/34

IPC before Additional Judicial Magistrate, Barmer. The matter was committed to the Court of Additional Sessions Judge, Barmer for trial.

The trial Judge framed the charges against the accused appellant Bher Singh, Ved Singh and Chutar Singh for offence under Section 302/34

IPC. The accused appellants pleaded not guilty and claimed trial.

During the trial, the prosecution got examined as many as 18 witnesses (PW 1 to PW 18) and documentary evidence was exhibited as Ex.P/1

to Ex.P/22. After completion of prosecution evidence, the statements of the accused appellants were recorded u/s. 313 Cr.P.C., wherein they

denied their involvement in the commission of the crime as alleged and stated that they have been falsely implicated on account of enmity. In

defence, Anad Singh (DW 1) was examined as witness and documentary evidence was exhibited as Ex.D/1 to D/4.

The learned trial Court after consideration of the rival submissions and the evidence on record, convicted and sentenced the accused appellants

as indicated above. Hence, this appeal.

Heard the learned counsels for the appellants and learned Public Prosecutor.

Mr. Suresh Kumbhat, learned counsel appearing on behalf of the appellants submitted that the learned trial Judge has failed to examine the

evidence on record in correct perspective. The appellants who are brothers have been falsely implicated in the case. Shaitan Singh (PW 15) and

Ganpat Singh (PW 17) are only chance witnesses who have appeared at the place of occurrence all of a sudden. It is submitted that in the FIR

(Ex.P/21) , the injuries caused were not attributed to any of the accused specifically and thus, the statement of Shaitan Singh (PW 15) and Ganpat

Singh (PW 17) apparently suffers from embellishments. Learned counsel would submit that from bare perusal of their statements, it is apparent that

they were not the eye witnesses of the incident occurred. It is submitted that in their deposition, the alleged eye witnesses have stated that Bher

Singh inflicted lathi blow on the head of the deceased Bhoor Singh and the remaining injuries which are found simple in nature are not assigned to

any of the accused specifically. Learned counsel submitted that it is apparently a case of over implication and if the evidence of the alleged eye

witnesses and other witnesses as also the medical evidence are scrutinized in correct perspective, the offence against Bher Singh does not travel

beyond the provisions of Section 325 IPC and no case whatsoever is made out against the accused Ved Singh and Chutar Singh and thus, it is

apparently a case of over implication. In support of the contention, learned counsel has relied upon a decision of the Supreme Court in the matter

of ''State of Uttar Pradesh vs. Tribhuwan & Ors.'', 2018 Cr.L.R. (SC) 42 and a Bench decision of this court in the matter of ''Idrish vs. State of

Rajasthan'', 1996 2 RLW (Raj. ) 100. It is submitted that there is no motive behind the quarrel and thus, the conviction of the accused appellants

for offence under Section 302 IPC is not sustainable. Learned counsel would submit that except the head injury, other injuries which are abrasions

and bruises and thus, on the facts and in the circumstances of the case, there is nothing suggesting an intention on the part of the accused appellants

to cause death of Bhoor Singh or causing such bodily injury as is likely to cause death or that the act is done with the knowledge that it is likely to

cause death and therefore, the impugned judgment passed by the trial court convicting the accused appellants for the offences charged deserves to

be set aside.

Per contra, Mr. JPS Choudhary, learned Public Prosecutor submitted that the guilt of the accused appellants stand proved beyond reasonable

doubt on the basis of the testimony of the eye witnesses and other corroborative evidence on record. Learned Public Prosecutor submitted that the

credit of the eye witnesses is in no manner impeached in the cross examination and they are wholly reliable witnesses. That apart, there is dying

declaration in the form of narration of the incident occurred by the deceased Bhoor Singh to his wife Smt. Jora (PW 14). Learned Public

Prosecutor submitted that the head injury caused to the deceased Bhoor Singh is opined to be sufficient in ordinary course of nature to cause death

and thus, the contention sought to be raised on behalf of the accused appellants that there was no intention on the part of the appellants to cause

death is devoid of any merit. Learned Public Prosecutor further submitted that from deposition of eye witnesses it is proved beyond reasonable

doubt that the head injury was caused by Bher Singh on being exhorted by the co-accused and thus, the conviction of the co-accused with the aid

of provisions of Section 34 IPC is absolutely justified.

We have considered the rival submissions and scanned the evidence on record carefully.

The Medical Jurist Dr. Narendra Kumar Jugtawat (PW 10) conducted autopsy of the dead body of Bhoor Singh. As per the post mortem

report (Ex.P/10), following ante mortem injuries were found on the person of the deceased Bhoor Singh:

A Lacerated wound 1.7 cm x 0.4 cm about 1 cm in AP direction with an oblique tilt situated on top of a boggy swelling of about 10 cm

diameter on right temporo-parietal region of skull.

A redish bruise (faint) about 2 x 1 cm on right side of abdominal wall below costal margin.

An abrasion 3/4 cm x 1/2 cm on back of right forearm, about 5 cm above the wrist.

An abrasion 1/4 x 1/4 cm on back of right forearm in middle.

On opening of the skull, an extra dural heamatoma of little more than a fist size was found on right temporo -parietal region. The membranes (Dura

and arachnoid) were found congested. The underlying brain and right cerebral hemisphere was compressed, flattened and pushed to left side.

The cause of death was opined to be coma, produced by pressure on the vital centres due to compression of brain caused by extra dural

haemorrhage and heamatoma. The injury was opined to be inflicted by blunt weapon and self sufficient to cause death in ordinary course of nature.

Other injuries were also opined to be ante mortem and caused by blunt weapon.

Dr. Narendra Kumar Jugtawat (PW 10) in his deposition has categorically confirmed the injuries sustained by the victim as also the cause of

death. Thus, looking at the nature of injuries and the medical evidence on record the death of Bhoor Singh was concededly homicidal in nature.

The prosecution case is founded on testimony of eye witnesses Shaitan Singh (PW 15) & Ganpat Singh (PW 17) and Smt. Jora (PW 14), the

wife of the deceased, before whom the deceased declared that he was belaboured by Bhera, Veda and Chutra.

Shaitan Singh (PW 15) in his deposition stated that on the fateful day on hearing hue and cry, he accompanied by Ganpat Singh (PW 17)

rushed to the house of Bher Singh, where he saw Ved Singh, Chatar Singh and Bher Singh belabouring Bhoor Singh by lathis. Bher Singh gave a

lathi blow on the head of Bhoor Singh, he fell down. Ved Singh exhorted Bher Singh to kill Bhoor Singh. He intervened and rescued Bhoor Singh,

he was taken to his home by them. On reaching home, Bhoor Singh fell unconscious. Bhoor Singh felt breathlessness and asked to pour water on

his head. Ganpat Singh was sent to call Amar Singh and Panney Singh. Panney Singh and Amar Singh asked him to bring the tractor saying that no

other facility is available. Thereupon, he went to Mobataram Bishnoi''s Dhhani. Bhoor Singh was taken to the hospital Chohtan in the tractor.

Before proceeding to the hospital, the report (Ex.P/18) was lodged at police station. On the advise of the doctor, Bhoor Singh was admitted to the

hospital at Barmer. In the cross examination, he stated that when he reached the place of occurrence, beating was going on. Bher Singh inflicted

four lathi blows on Bhoor Singh. Ved Singh and Chatar Singh were having gaidi in their hands. They were also beating Bhoor Singh by punch and

kicks. He further deposed that after his reaching there, Bher Singh gave a lathi blow on the head of Bhoor Singh, as a result whereof, he fell down.

On account of lathi blow, blood was oozing out and his apparels also got blood stained. Then he deposed that his bushirt and ganji were got blood

stained. Immediately thereafter, he said that Bhoor Singh was wearing only ganji and not the bushirt. Bhoor Singh was in position to walk with their

support. On being asked by the court, he deposed that neither on the way from the place of occurrence to the house of Bher Singh, he asked Bher

Singh as to why he had gone to that place nor on reaching home, his wife apprised them as to why he had gone there.

Ganpat Singh (PW 17) deposed that on the fateful day at 7-8 P.M. he and Shaitan Singh were coming back from Biratara Temple. When

passing by the house of Sagat Singh, they heard hue and cry at the house of Bher Singh. He and Shaitan Singh rushed to the house of Bher Singh

where they saw Bher Singh, Ved Singh and Chutar Singh belabouring Bhoor Singh. Ved Singh exhorted to kill Bhoor Singh. Bher Singh inflicted

lathi blow on the head of Bhoor Singh. Bhoor Singh immediately fell down and become almost unconscious and thereafter, all the three persons

belaboured him by lathis, punch and kicks. They intervened and rescued him. Thereafter, he and Shaitan Singh (PW 15) holding Bhoor Singh''s

hands from both the side, took him to his home. On asked by his wife Jora as to what has happened, Bhoor Singh revealed that Bher Singh, Ved

Singh and Chutar Singh had belaboured him. The blood was oozing out from the head of Bhoor Singh and his shirt also got blood stained. Bhoor

Singh told his wife to wash his head by warm water, but in a short while, he started vomiting and his condition got deteriorated, he fell unconscious.

Looking at his serious condition, he went to call Amar Singh and Panney Singh and Bhoor Singh''s wife had gone to call Sagar Singh. When all the

persons reached there, looking at the injury and oozing out of blood, it was thought proper to took him to the hospital. Even after efforts being

made, no transport facility could be made available in the village and therefore, Shaitan Singh went to Mobtaram Bishnoi''s Dhhani to bring the

tractor and thereafter, Bhoor Singh was taken to the Police Station, Chohtan. Shivchand, ASI, prepared the papers and sent a police personnel

with them. Bhoor Singh was taken to the hospital at Chohtan where looking at his serious condition, he was referred to the hospital at Barmer

where on the same day at 9 P.M. he expired. He deposed that he did not know as to why Bhoor Singh was beaten by the accused persons,

however, he stated they had beaten deceased Bhoor Singh with an intention to kill him and had he and Shaitan Singh not reached there, Bhoor

Singh would have been killed. In cross examination, he deposed that he had seen three lathi blows being inflicted on the person of deceased Bhoor

Singh. One lathi blow was inflicted on the head and two on the hands of Bhoor Singh. Chutar Singh and Ved Singh also inflicted lathi blows. They

inflicted lathi blow on the hands. One blow was inflicted on elbow of one hand and another on the wrist of other hand. The blood was oozing out

of the head and the hands, which spread on his bushirt as well. There was hue and cry at the house of Bher Singh but nobody reached there. They

stayed at the house of Bhoor Singh for half an hour.

Smt. Jora (PW 14) deposed that on the fateful day, at sunset time, her husband had gone to Bhera''s bara. After quite some time, her husband

was brought to home by two persons. She poured water on the head of her husband, he started vomiting. On being asked how it has happened,

he said that Bhera, Veda and Chutra have beaten him. She called Sagar Singh and thereafter, Ganpat Singh and Shaitan Singh called other persons

from the village. Thereafter, Shaitan Singh was sent to Bishnoi''s Dhhani to bring the tractor. Her husband had fell unconscious, he was taken to

hospital at Chohtan. He could not be treated there and In cross examination, she stated that her husband had gone to the house of Veda, Bhera

and Chutra to inquire about his younger brother Hukam Singh who had gone to attend the peshi but did not return. She stated that whenever her

husband goes out, he used to wear bushirt, safa, dhoti and juti and on the fateful day also, he was wearing the same apparels. At the time when her

husband was brought back to the home, the blood was oozing out from his head which had spread on his bushirt, baniyan and dhoti as well.

A close scrutiny of the testimony of eye witnesses, we find it consistent qua the appellant Bher Singh. So far as allegations against Ved Singh

and Chutar Singh are concerned, the injuries alleged to have been inflicted by them are not corroborated by medical evidence. As noticed above,

only four injuries were found on the person of the deceased Bhoor Singh out of which three were found simple in nature. Shaitan Singh (PW 15) in

his examination-in-chief stated that all the three were beating Bhoor Singh with lathis, but in the cross examination, he deposed that Ved Singh and

Chutar Singh were having gaidi in their hands and they were belabouring Bhoor Singh by punching and kicking. It is pertinent to note that no gaidi

or lathi has been recovered at the instance of Ved Singh and Chutar Singh. Further, Ganpat Singh (PW 17) stated that Bher Singh inflicted lathi

blow on the head of Bhoor Singh, he immediately fell down and thereafter, all the three persons belaboured him by lathis, punching and kicking;

one lathi blow was inflicted on the head and two on the hands. Chutar Singh and Ved Singh were alleged to have inflicted the injuries on the hands.

It is pertinent to note that in the written report (Ex.P/18) lodged by Shaitan Singh (PW 15) as also in his statement recorded by the police under

Section 161 Cr.P.C. (Ex.D/2), the only injury specifically assigned was the injury caused by Bher Singh by lathi blow on the head of Bhoor Singh.

In this view of the matter, there exists no consistency regarding the overt act on the part of Chutar Singh and Ved Singh. Taking into consideration,

the contradictions in the statements of eye witnesses noticed above, their testimony is not found wholly reliable and possibility of over implication

cannot be ruled out. We are of the opinion that the prosecution has not been able to prove the participation of Chutar Singh and Ved Singh in

belabouring Bhoor Singh beyond reasonable doubt.

As per deposition of Smt. Jora (PW 14), deceased Bhoor Singh used to visit the homes of Ved Singh and Bher Singh and they were enjoying

good relations. Further, on the fateful day, Bhoor Singh had gone to the house of Bher Singh to inquire about his brother Hukam Singh, who had

gone to attend the peshi and did not return. Nothing has come on record as to what had happened at the residence of Bher Singh, which led to

Bhoor Singh being beaten by Bher Singh. It appears that the origin and genesis of the incident occurred has been withheld by prosecution. But

then, on the basis of the evidence adduced, it could be inferred that the incident occurred all of a sudden, on a spur of moment, without there being

any pre meditation. It is pertinent to note that only one lathi blow was given by Bher Singh on the head of the deceased. There was no such

repeated injuries found on the person of the deceased were simple in nature. Thus, on the basis of the evidence on record, it is difficult to draw a

conclusion that the accused Bher Singh had intention to cause death or cause such bodily injury as is likely to cause death but it can be safely

presumed that he had knowledge that the blow inflicted by him is likely to cause death.

In view of the discussion above, the conviction of the accused appellant Bher Singh deserves to be altered for offence under Section 302 IPC

to 304 Part II IPC. The charge against the accused appellants Ved Singh and Chutar Singh is not established beyond reasonable doubt and

therefore, they deserve to be acquitted.

Accordingly, the appeal preferred on behalf of appellants Ved Singh and Chutar Singh is allowed. The appeal preferred on behalf of appellant

Bher Singh is partly allowed.

The conviction of appellants Ved Singh and Chutar Singh for offence under Section 302/34 IPC is set aside, they are acquitted of the charge.

The bail bonds of Ved Singh and Chutar Singh shall stand discharged. However, each of them will execute a bail bond in sum of Rs.25,000/- to

the satisfaction of trial court in terms of provisions of Section 437A of the Criminal Procedure Code.

The conviction of the appellant Bher Singh for offence under Section 302 IPC is set aside. The appellant Bher Singh is convicted for offence

under Section 304 Part II IPC.

The appellant Bher Singh at the time of commission of offence was about 28 years of age and by now, he has attained the age of about 57

years. During the trial, he remained behind the bars for the period from 10.3.89 to 9.6.89. After conviction, he was enlarged on bail by this court

vide order dated 4.12.89. Thus, taking into consideration the totality of the facts and circumstances of the case, the appellant Bher Singh is

sentenced to suffer rigorous imprisonment for a period of three years with fine Rs. 50,000/-; in default of payment of fine to undergo further

rigorous imprisonment for six months. The appellant Bher Singh shall surrender forthwith to serve out the remaining sentence. The amount of fine to

be deposited by the appellant Bher Singh, shall be paid to Smt. Jora, the wife of deceased Bhoor Singh.