State of Rajasthan vs Kishan Singh and Others

A.S.Anand, J.—DURING an occurrence which took place at about 10.30 p.m. on 19.10.1984, Mastan Singh (deceased) received a number of injuries. The incident took place in the village near the house of one Bhura Ram. Inder Singh, son of the deceased lodged the First Information Report (FIR) at Police Station Gangashahar. Investigation was taken in hand and Kishan Singh alongwith four others, namely, Hem Singh, Chhagan Singh, Karan Singh and Bastiram were arrayed as accused. Since Mastan Singh had succumbed to his injuries, accused Kishan Singh, Chhagan Singh, Hem Singh, Karan Singh and Bastiram were tried for offences under Section 302/34 Indian Penal Code and 324/34 Indian Penal Code. Karan Singh and Bastiram were also tried for substantive offence under Section 302 Indian Penal Code.

ACCORDING to the prosecution case, the occurrence was witnessed by Mena, Public Witness-1; Inder Singh, Public Witness-3 (the first informant); Mst. Sampath, Public Witness-7; and Narsingh, Public Witness8. Public Witness-1 and Public Witness-7 are the daughters of deceased Mastan Singh while Public Witness-8 is the father-in-law of Public Witness-3 Inder Singh''s sister.

The trial Court after recording evidence of the prosecution witnesses vide judgment dated 1/08/1986 acquitted Karan Singh and Bastiram, who alone had been charged for substantive offence under Section 302 Indian Penal Code besides other offences under Sections 302/ 34 and 324/34 Indian Penal Code of all the offences. The trial Court, however, convicted Hem Singh, Kishan Singh and Chhagan Singh for an offence under Section 302/34 Indian Penal Code and sentenced them to undergo life imprisonment and to pay a fine of Rs. 200.00 each and in default of payment of fine to further undergo RI for a period of two months. They were also convicted for an offence under Section 324/34 Indian Penal Code and sentenced to undergo six months Rl each. Whereas the State did not file any appeal against the acquittal of Karan Singh and Bastiram, the convicts filed appeals before the High Court against their conviction and sentence. The High Court vide judgment dated 22/10/1991 acquitted Chhagan Singh of the offence under Section 302/34 Indian Penal Code as also for the offence under Section 324/34 Indian Penal Code. The High Court also set aside the conviction and sentence of Kishan Singh and Hem Singh for offences under Section 302/34 Indian Penal Code. Their conviction and sentence for an offence under Section 324/34 Indian Penal Code was, however, maintained. The State has come up in appeal by special leave against the acquittal of Kishan Singh, Hem Singh and Chhagan Singh.

WE have perused the judgment of the High Court and gone through the evidence of Inder Singh Public Witness-3, the first informant and the other eye-witnesses and heard learned counsel for the parties.

OUR independent appreciation of evidence shows that the prosecution witnesses have improved upon their evidence at the trial with a view to bring their testimony in line to the medical evidence. A perusal of the First Information Report and the statement of Inder Singh Public Witness-3, the first informant and son of the deceased, reveals that injury No. 3 on right side chest of the deceased, which according to Dr. R.K. Ghelot, who had conducted the postmortem examination of the deceased, was a fatal injury and was sufficient in the ordinary course of nature to cause death, was attributed to Kishan Singh. Though the authorship of this injury was not specified in the FIR, according to the first informant, Kishan Singh had caused the injury from a barchi (spear) with which he was allegedly assumed. Acquitted accused Bastiram was also stated to be armed with a katar (dagger). According to Public Witness-15 Dr. Ghelot, fatal injury on the deceased (injury No. 3) could not-have been caused by a barchi (spear). Therefore, with a view to bring his evidence in line with the medical evidence, Inder Singh Public Witness- 3 improved upon his version and attributed injury No. 3 to Hem Singh, to have been caused by him by a knife. This version did not find place either in the FIR or in the statements of any other prosecution witnesses recorded under Section 161 Criminal Procedure Code. The High Court has taken serious note of it arid, in our opinion, rightly so. When the author of the fatal injury becomes doubtful- whether it was one of the accused-respondents before us or one of the accused-acquitted by the trial Court, against whose acquittal State never filed any appeal, it would be difficult to find either Kishan Singh or Hem Singh guilty of causing that injury. No fault can, therefore be found with the judgment of the High Court in acquitting the respondents of the charge under Section 302/ 34 Indian Penal Code. We are not satisfied that common intention to cause death of deceased Mastan Singh can be attributed to the respondents on the basis of evidence on the record. We agree with the High Court that the evidence in that behalf is completely lacking and discrepant. That being the position, both Kishan Singh and Hem Singh could only be convicted for the acts committed by them and as disclosed by the first informant at the earliest point of time. The injuries so attributed to them bring their case only under Section 324/34 Indian Penal Code and they were rightly convicted and sentenced for those offences by the High Court. In our opinion, the judgment of the High Court is well reasoned and based on proper appreciation of evidence. The acquittal of respondents for the offence under Section 302/34 Indian Penal Code is well merited. It does not call for any interference at our hands. The appeal against acquittal is, accordingly, dismissed.

The respondents are on bail. Their bail bonds shall stand discharged. Appeal dismissed.