Sukha Singh vs The State of Rajasthan

B.R. Arora, J.—This appeal is directed against the judgment dated September 3, 1985, passed by the Additional Sessions Judge No. 2, Hanumangarh, by which the learned Additional Sessions Judge convicted and sentenced the accused for the offence u/s 302 I.P.C.

Appellant Sukha Singh alias Sukhdeo Singh was tried by the learned Additional Sessions Judge No. 2, Hanumangarh, for the offence u/s 302 I.P.C. The case against the accused- appellant as unfolded in the First Information Report EX.P.10, which was lodged at Police Station, Pilibanga, on June 3, 1934, at about 1.30 p.m. by Santokh Singh S/o Rooda Singh (PW 3), is that he and his father Rooda Singh were sleeping on their cots in front of the bakery-shop of his father situated in the premises of Gurudwara in Mandi Pilibanga. In the night, at about 1.00 a.m., after hearing some noise, he woke-up and saw accused Sukha Singh armed with Kulhari and after exclaiming that the enemy has been found and he will kill him, he inflicated injuries with Kulhari on the head of Rooda Singh and repeated the blows by Kulhari on the face and sholders of Rooda Singh. The informant, on account of fear, kept himself lying. On receiving the injuries, his father Rooda Singh died and the accused, after inflicting injuries, ran away. Accused Sukha Singh had killed his father on account of old enmity. In pursuance of this First Information Report, a case u/s 302 I.P.C. was registered; the accused was arrested and the police, after necessary investigation, presented the challan against the accused. The learned Additional Sessions Judge, after trial, convicted the accused-appellant u/s 302 I.P.C. and sentenced him to undergo imprisonment for life and a fine of Rs. 500/- and in default of payment of fine, further to undergo six months'' rigorous imprisonment. It is against this judgment dated September 3,1985, passed by the learned Additional Sessions Judge No. 2, Hanumangarh, convicting and sentencing the accused- appellant that the present appeal has been filed.

We have heard the learned Counsel for the appellant and the learned Public Prosecutor.

It is contended by the learned Counsel for the appellant that the investigation in the present case is not fair and the First Information Report was not recorded at the time which been shown but it was recorded after the investigation was over. The second contention, raised by the learned Counsel for the appellant is that PW 3 Santokh Singh is not an eye witness of the occurrence and was not present at the time of the occurrence at the place of the incident and he was brought from his village where he used to reside and was produced as an eye witness to the occurrence. His further contention is that this witness, at the relevant time was a child of 13 years and there are every chance of tutoring of this witness and, therefore, on the basis of the testimony of this witness, no conviction can be based. Thirdly, it is contended by the learned Counsel for the appellant that the prosecution has failed to prove that the seals of the articles, which were sent for chemical examination, remained intact through-out, i.e., since the recoveries till they were received in the State Forensic Science Laboratory, Jaipur. Lastly, it is contended that the specimen impression of the seal was not sent alongwith the sealed articles and, therefore, the recoveries made by the prosecution, cannot be of any help to the prosecution. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the learned lower Court and has submitted that the learned trial Court has properly appreciated the evidence on record and has rightly convicted and sentenced the accused- appellants.

We have considered the rival submissions made by the learned Counsel for the parties.

Before considering the arguments, raised by the learned Counsel for the parties we would first like to consider the nature of the evidence, produced by the prosecution.

The prosecution, in support of its case, examined five witnesses and placed on record 16 documents. PW 1 Om Prakash is the Police Constable, who was posted at the Police Station, Pilibanga and who took the five sealed packets from the Malkhana of Police Station, Pilibanga to the State Forensic Science Laboratory, Jaipur. He has stated that the packets, which were taken by him, were duly sealed and were intact. He took the sample-packets on July 8, 1984 and handed them over in the State Forensic Science Laboratory, Jaipur, on July 9,1984. He has further stated that the sealed packets remained duly sealed and intact, since he received the same from the Malkhana till he handed over the same to the State Forensic Science Laboratory, Jaipur.

PW 2 Balwant Singh is a Motbir witness, who witnessed the arrest of the accused and the preparation of the site plan EX.P.4, Fard Surat Haal Lash EX.P5, Panchnama of the deadbody of Rooda Singh EX.PB, recovery of the blood-stained soil EX.P.7, the recovery of the clothes of deceased Rooda Singh EX.P8 and the recovery of the Kulhari at the instance of the accused EX.P.9.

PW 3 Sontokh Singh is the eye witness of the occurrence, who has stated that he alongwith his father Rooda Singh was sleeping on the cots in the night outside the shop of his father and on account of some noise, he woke-up and saw the accused armed with kulhari standing near the cot of his father and inflicted three injuries on the face and shoulders of his father. On receiving these injuries, his father died and he lodged the FIR. EX.P10 at Police Station Pilibanga. He has, also, stated that there was some dispute between his father and the accused regarding -the shop and on account of that bad-blood, the accused and killed his father. This witness was cross-examined by the accused and in the cross-examination, he has admitted that if there would have been no noise, then he could not have been awaken. He has, also, stated in the cross-examination that he lodged the report at the Police Station and the police took about two minutes in writing the report and thereafter the police came to the scene of the occurrence alongwith him and saw the deadbody of his father. The police remained at the scene of the occurrence for about half-an-hour and thereafter went to the Police Station and he, alongwith the police party, went to the police Station. Certain Memos were prepared at the Police Station which bear his thumb impressions. He has, also, stated that in the night, the F.I.R. was read-over to him and thereafter he put his thumb impression. He has, also, admitted that on certain statements, he put his thumb impressions and after the Sun-rise, he put the thumb-impression on the paper at two places. He has, also, admitted that when the accused was inflicting the injuries with Kulhari to his father, he remained lying down on his cot and did not got-up. He has, also admitted that he identified the accused in the light of an electric bult-out-side their shop. He has, also, admitted that the shop, out-side which the murder of his father took-place is in the Gurdudwara premises and his father was a Nihang and certain other Nihangs were, also there inside the Gurudwara, but he did not inform any of them and lodged the report at the Police Station. He has, also, admitted that his cot was not seized by the police and no blood-stains were found on his cot. He has, also, admitted that he did not ascertain by touching the body of his father whether he was dead or not, when the police came at the scene of the occurrence then it was confirmed that his father had died. He has denied the suggestion put forward by the defence that he was not at village Pilibanga but was at village Ahmedpura.

PW 4 Abdul Aziz is the Investigating Officer and was the Incharge of the Police Station at the relevant time. He has stated that he conducted the investigation in the present case, arrested the accused and recovered certain articles and prepared various Memos, and after completion of the investigation, presented the challan. He has, also, stated that the sealed articles remained in his custody since the time of recoveries till they were sent for Chemical Examination and the seals of these articles through-out remained intact and nobody tampered with the seals of these articles.

PW 5 is Dr. Vijay Kumar, who conducted the post-mortem on the deadbody of deceased Rooda Singh and found four incised wounds on the deadbody of the deceased, which were ante-mortem in nature and were inflicted within the duration of twelve hours and the cause of the death, according to this witness, was due to multiple injuries and head injury, which resulted in the fracture of skull, lacertaion of the brain, haemorrhage and shock.

The prosecution, also, placed on record sixteen documents. This is all the evidence that has been produced by the prosecution.

There is a solitary eye witness PW 3 Santokh Singh and the whole case hinges on the solitary testimony of PW 3 Santokh Singh, coupled with some recoveries made from the accused or at his instance, as well as from the place of the occurrence. .

Now, coming to the arguments advanced by the learned Counsel for the appellant, the first contention, raised by the learned Counsel for the appellant is that the First Information Report in the present case was recorded after the investigation was over because no witness was present at the scene of the occurrence and only the deceased was sleeping on his cot out-side his shop and the police received the information regarding the murder of Rooda Singh and thereafter the witnesses were called from village Ahemdpura and the report would have been lodged at the time at which it is so alleged then it could not have reached to the house of the Munsif and Judicial Magistrate, Suratgarh, at 8.00 p.m. on June 8,1984, when Suratgarh is at a distance of only 25 kilometres and is connected by the road as well as by train and there is a frequent bus service on this route and the buses ere available after every half-an-hour. We have considered this aspect of the case and gone-through the evidence, produced by the prosecution, but we are not agreable with the contention raised by the learned Counsel for the appellant. The accused himself was arrested at about 4.00 p.m., which is clear from EX.P.2-the arrest memo. The accused was arrested near the Railway Station of Pilibanga in the presence of two Motbir witnesses. That was the time for running the train coming from Bhatinda which proceeds towards Hanumangarh. The arrest memo bears the signatures of the accused. He has not denied his arrest or his signatures on this arrest memo. If the F.I.R. would not have been registered at the Police Station at about 1.30 a.m. then the investigation could not have been started. The deceased was running a bakery shop and merely because the size of the shop was small, it cannot be said that this witness (PW 3 Santokh Singh) was not living with his father. The learned Counsel for the appellant, on the basis of the statement of PW 2 Balwant Singh, has tried to presuade us that as Balwant Singh (PW2) has stated that Rooda Singh''s wife and children are residing at village Ahmedpura and as such PW3 Santokh Singh was not present at the scene of the occurrence. But this does not mean that this wintess was, also, residing with his mother. The number of the children of deceased Rooda Singh is six, which has come on record. This witness was residing with his father as he has stated and the remaining children might have been residing with their mother. Merely on this pretext, it cannot be said that this witness was not residing with his father. The deceased Rooda Singh and his son were living in the shop and had not taken any other house on rent. According to the learned Counsel for the appellant, as this witness did not inform any person in the Gurudwara regarding the murder of his father and went straight to the Police Station, also, shows that this witness was brought by the police from the village and if he would have been in Pilibanga and would have seen the occurrence then the natural consequence would have been that he should have informed the inmates of the Gurudwara. In this connection, suffice it to say that the incident took-place in the dead of night at about 1.00 a.m. and everybody might have been in sleep at that time and, therefore, if the witness went towards the Police Station and lodged the report than his conduct cannot be said to be unnatural, rather it was the most natural conduct as the witness was knowing the location of the Police Station and that is why he rushed to the Police Station. All the attending circumstances like the arrest of the accused at 4.00 a.m. the recoveries of the deadbody and other articles from the place of the occurrence and the preparation of all the Memos, clearly show that the F.I.R. was lodged by PW 3 Santokh Singh at the time when it has been shown to be lodged. There is nothing on record which could support the contention of the learned Counsel for the appellant that the report was not lodged in time. Merely because the report could not be sent to the concerned Magistrate till 8.00 p.m. It cannot create any suspicion. It is not the requirement of the law that it should be immediately sent to the Magistrate. No adverse inference can be drawn in such a matter and we are of the opinion that the report, lodged in the present case, cannot be said to have been a written after the investigation was started, but it was actually registered at 1.30 a.m. and the investigation started after the registration of the report.

The next point, which requires consideration is: whether PW 3 Santokh Singh was present at the scene of the occurrence and has witnessed the occurrence? The presence of this witness at the scene of the occurrence is most probable. He is the son of the deceased Rooda Singh, who was running a bakery shop at Mandi, Pilibanga. Merely because Rooda Singh was not having any residential accommodation and was residing with his father in the shop which is measuring 8''x6''. This witness and his father belonged to a lower strata of life and number of persons are living in such small tenaments and, therefore, it cannot be said that he was not living with his father, His presence at the scene of the occurence is most probable. Moreover, another cot was found when the site was inspected by the Investigating Officer PW 4 Abdul Aziz. If he would not have been there the immediate -report could not have been lodged in the Police Station and necessary steps could not been taken for arresting the accused. The arrest of the accused at about 4.00 a.m. clearly shows that the F.I.R. was registered at about 1.30 a.m. at the instance of this witness. A lengthy cross-examination has been conducted on this witness, but the veracity of this witness could not be shaken. A reading of the statement of this witness, coupled with the attending circumstances, clearly shows that this witness was present at the time of the occurrence and is a witness of the occurrence. He was a boy of 13 years and we are of the opinion that the statement of this witness is a natural one and it cannot be said that he was, in any way, tutored or is not speaking truth or has given the statement as suggested by the police. He is a most truthful and natural witness and a witness of sterling worth, on the testimony of whom the conviction can be based as he has seen the occurrence and has narrated what he has actually seen.

Now, coming to the question of recoveries, the recoveries of the articles were made in the presence of PW 2 Balwant Singh and the another witness Harphool Singh. The only attack made by the learned Counsel for the appellant regarding the recoveries is that no evidence has been produced by the prosecution from which it could be gathered that the seals on the articles remained through-out intact and, therefore, the recoveries cannot be used against the accused. In this aspect of the case, suffice it to say that the recoveries were made by PW 2 Abdul Aziz during the investigation and he has specifically stated that all these articles, since the recoveries and seizure were remained in the Malkhana in his custody and were duly sealed and in intact condition and nobody tamprered with the seals thereof till they were sent for chemical examination from the Malkhana to the State Forensic Science Laboratory, Jaipur, for chemical examination, has stated that he got five sealed packets from the Malkhana, which were duly sealed and in intact condition and were he remained so till they were delivered at the State Forensic Science Laboratory, Jaipur. There is, thus, a clear evidence of these witnesses, i.e. PW 1 Om Prakash and PW 4 Abdul Aziz that the seals on these articles remained intact through-out, therefore, the arguments of the learned Counsel for the appellant on this point is devoid of any force.

Now comes the last contention raised by the learned Counsel for the appellant. According to the learned Counsel for the appellant, the speciman impression of the seal was not sent to the State Forensic Laboratory, Jaipur, alongwith the samples. We have considered this aspect of the case, also. There is sufficient evidence on record which shows that the specimen impression of seal was sent by the police alongwith the letter addressed to the State Forensic Science Laboratory, Jaipur. EX.P.12 is the sample-seal which was accompanied with the letter EX.P.13 and was sent to the State Forensic Science Laboratory, Jaipur alongwith the sealed packets. In the report of the State Forensic Science Laboratory EX.P.1 5, while giving the description of the sealed-packets, it has been clearly mentioned that the packets 5 enclosed within the cloth were properly sealed, bearing impression forwarded. This report EX.P.15 clinches the issue and clearly shows that the specimen seal impression EX.P.14 was received by the State Forensic Science Laboratory, Jaipur, which when tallied with the sealed samples were found in order. In this view of the matter, this argument, advanced by the learned Counsel for the appellant, also, falls to the ground.

The Statement of PW 3 Santokh Singh finds further support from the recoveries made. The Kulhari, which was blood- stained, was recovered at the instance of the accused Sukha Singh from his own house, in which he alone was residing. This recovery was made at his instance and in the information supplied by him and the same was found stained with blood. According to the report of the Foresnsic Science Laboratory, Jaipur, the Kulhari, which was recovered at the instance of the accused and the other articles/items, namely, controlled soil, turban of the deceased, rug (Dari) etc. were found stained with ''A'' group blood. When the Kulhari and other items were stained with the human blood of Group ''A'', which was of the deceased, it clearly shows that this Kulhari was used as a weapon of offence to kill the deceased and this Kulhari was recovered at the instance of the accused from his house and was found in his possession. The prosecution case further finds support from the medical evidence, also. We are, therefore, of the opinion that the prosecution has been able to prove the case against the accused-appellant beyond any manner of doubt and PW 3 Santokh Singh is a reliable witness, whose evidence is supported by the other circumstantial evidence, also, i.e., from the recoveries and the medical report.

In this view of the matter, we do not find any merit in the appeal and the same is hereby dismissed.