Mool Singh and Others vs State of Rajasthan

Govind Mathur, J.—By the judgment impugned dated 18.6.2009, learned Additional Sessions Judge(Fast Track) No. 2, Pali convicted the accused Appellants No. 2, 3 and 4 for the offences punishable under Sections 302/34 and 341 Indian Penal Code. Accused Appellant No. 1 Mool Singh was convicted for the offences punishable under Sections 341 and 302 Indian Penal Code. The trial court awarded sentence to the Appellants as under:

Under Section

Sentence

Fine

In default of payment of fine

341 IPC (Each)

1 month''s SI

250/- each

5 days each

302 IPC (Mool Singh)

Life Imprisonment

5000/-

6 months SI

302/34 IPC

Life Imprisonment

5000/-

6 months SI

In appeal, main contention of counsel for the Appellants is that no case is made out against accused Appellant Mool Singh to convict him for the offence punishable u/s 302 Indian Penal Code and similarly no material is available to record conviction of other Appellants for the offence punishable u/s 302/34 Indian Penal Code. It is asserted that as a matter of fact on basis of the evidence available on record the act of accused Appellant Mool Singh does not travel beyond an offence punishable u/s 325 Indian Penal Code. In alternative, it is also urged that even by accepting the prosecution case in totality, the act of the Appellant No. 1 may be an offence punishable u/s 304 part-II Indian Penal Code.

In brief, facts of the case are that on 19.6.2008 at about 07:15 AM Shri Girdhari Singh (PW-1) submitted a written report at police station Siriyari alleging therein that on 18.6.2008 at about 08:00 PM Daul Singh, Mool Singh, Jawahar Singh and Fateh Singh were quarreling with Sohan Singh. All the above named four persons were beating Sohan Singh who was screaming quite loudly. On seeing villagers coming towards the spot, all the four persons named above fled from the spot.

On basis of the information aforesaid a case was registered and investigation was initiated for commission of offences punishable under Sections 307, 341, 323/34 Indian Penal Code. During the course of treatment injured Sohan Singh died on 29.6.2008, as such investigation was also commenced for the offence punishable u/s 302 Indian Penal Code.

After regular investigation a police report as per provisions of Section 173 Code of Criminal Procedure was filed before the competent court and the case was committed to the court of Sessions.

Learned trial court framed charges for the offences punishable under Sections 341 and 302 Indian Penal Code against accused Appellant Mool Singh and for the charges relating to the offences punishable under Sections 341 and 302/34 Indian Penal Code against the remaining accused Appellants. On denial of the charges, trial commenced.

The prosecution supported its case by getting 18 witnesses examined and also by exhibiting several documents. An opportunity was accorded to the accused Appellants to explain the circumstances adverse to them available in prosecution evidence. The accused Appellants denied all the charges and in defence produced DW-1 Arjun Singh as witness and also exhibited five documents, which are as a matter of fact the statements of the prosecution witnesses viz. Girdhari Singh, Mohan Singh, Smt. Bidami, Hem Singh and Net Singh recorded during the course of investigation as per provisions of Section 161 Code of Criminal Procedure

The trial court while relying upon the evidence adduced by the eye witnesses PW-1 Girdhari Singh, PW-3 Mohan Singh and PW-9 Smt. Bidami with other corroborative evidence held the accused Appellants guilty and convicted them accordingly.

We have examined the entire material available on record quite minutely.

From perusal of the medical evidence available on record there is no doubt about homicidal death of deceased Sohan Singh. The prosecution has substantiated its case with the aid of the eye witnesses and the recovery made at the instance of accused Appellant Mool Singh.

PW-1 Girdhari Singh stated on oath that on 18.6.2008 at about 08:00 PM while sitting on water tank with Mohan Singh, he heard scrams, thus, rushed towards the school building where Jawahar Singh, Mool Singh, Daul Singh and Fateh Singh were beating Sohan Singh. All the four persons on seeing him and Mohan Singh fled from the spot. As per this witness Mool Singh was armed with a lathi. He also stated that Fateh Singh was carrying an axe in his hand but changed this stand in cross examination. This witness also disclosed the fact that the accused persons were having an encroachment on a pasture land and the villagers were regularly making complaints in this regard. Proceedings u/s 91 of the Rajasthan Land Revenue Act lodged against them and the same were pending consideration. Quite interestingly in cross examination this witness stated that only accused Mool Singh who was carrying a lathi and other accused persons were empty handed. Quite definitely he stated that accused Fateh Singh was not having axe with him.

PW-3 Mohan Singh while narrating facts in detail stated that Mool Singh gave lathi blow to Sohan Singh while other accused persons Daul Singh, Jawahar Singh and Fateh Singh were beating Sohan Singh with the aid of hands. This witness during cross examination stated that except accused Mool Singh who was carrying a stick, no other persons was armed in any manner.

PW-9 Smt. Bidami wife of deceased Sohan Singh also stated that the accused persons were beating her husband Sohan Singh. A lathi blow was given by Mool Singh on the head of her husband. She further stated that at the time of incident,she was at the distance of about 200 steps from the spot.

From examination of the statements of the eye witnesses it is quite clear that except accused Mool Singh none other was armed. It also reveals from examination of the evidence available that except accused Mool Singh no accused gave fatal blow to the deceased. Looking to the evidence available and without examination of the issue relating to common intention, it can be safely said that if there was no common intention to kill Sohan Singh then the offence of the accused persons except Mool Singh does not travel beyond the offence described and punishable u/s 323 Indian Penal Code. However, before giving any finding in this regard the act of accused Mool Singh and the factum of availability of common intention is required to be examined.

Dr. Prakash Kumar Gahlot (PW-4) examined injuries of Sohan Singh and those were as under:

Laceration 5 x 3 x 2.5 cm left ear simple blunt.

Laceration 6 cm x 1 cm x 1.5 cm right side occipital region skull OR.

The injury No. 1 was found simple and X-Ray was advised to settle nature of injury No. 2.

Sohan Singh died after a lapse of 10 days on 29.6.2008 and as per postmortem report verified by Dr. Vijay Kumar Malhotra (PW-16) the cause of death of Sohan Singh was the hematoma in skull and as such the head injury.

The author of the injury aforesaid on the basis of the evidence available on record was Mool Singh. As such the involvement of Mool Singh for causing an injury that caused death of Sohan Singh, is proved beyond any shadow of doubt. However, from examination of material available on record it does not reveal that the accused named above was having any intention to kill Sohan Singh and further that he was even aware of the fact that the injury given by him may cause death. As such the offence committed by him does not travel beyond an offence described and punishable u/s 304 part-I Indian Penal Code.

At this stage it is also pertinent to note that no evidence is available on record to establish common intention of the accused in committing the crime or to prove that even during the course of the incident there was any meeting of minds with Mool Singh or otherwise to cause death of Sohan Singh. As such sufficient evidence is lacking to establish common intention.

In view of the discussions made above, we are of the view that the trial court though was right in arriving at the conclusion about involvement of the accused persons in the incident under consideration, but erred while recording conviction for the appropriate offences. The offence of accused Mool Singh does not travel beyond an offence punishable u/s 304 part-II Indian Penal Code and the offence of the other co-accused persons viz. Jawahar Singh, Daul Singh and Fateh Singh does not travel beyond an offence punishable u/s 323 Indian Penal Code.

In such circumstances, we deem it appropriate to allow this appeal in part.

The conviction of accused Mool Singh for the offence punishable u/s 302 Indian Penal Code, thus, is modified for an offence punishable u/s 304 part-II Indian Penal Code. The conviction of the other accused persons viz. Jawahar Singh, Daul Singh and Fateh Singh is modified from the offence punishable u/s 302/34 Indian Penal Code to an offence punishable u/s 323 Indian Penal Code.

Accused persons other than Mool Singh are sentenced for a term of imprisonment already undergone by them. So far as accused Mool Singh is concerned, he is sentenced to undergo rigorous imprisonment for a term of seven years with a fine of Rs. 5,000/-. He shall further be liable to undergo two months rigorous imprisonment in the event of failure to pay the fine aforesaid. Accused Jawahar Singh, Daul Singh and Fateh Singh are already availing suspension of sentence, thus, bail bonds and sureties furnished by them stand discharged.