1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Kishore Singh Vs. State of Rajasthan (1) D.B.CRIMINAL APPEAL NO.235/2006 Sohan Singh Vs. State of Rajasthan (2) S.B.CRIMINAL APPEAL NO.31/2006 Sumer Dan Vs. State of Rajasthan (3) S.B.CRIMINAL APPEAL NO.70/2006 against the judgment dt.21.12.05 passed by Addl.Sessions Judge (FT), Balotra in Sessions Case No.8/95. Date of Judgment: Nov.19, 2008 P R E S E N T HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.Dhirendra Singh,for accused Kishore Singh. Mr.B.S.Rathore, for accused Sohan Singh. Mr.Sandeep Mehta, for accused Sumer Dan. Mr.Panney Singh, for C.B.I. Mr.G.R.Punia, Mr.Pradeep Choudhary, for complainant. BY THE COURT : (PER HON'BLE THANVI J.) 1. By these three instant separate appeals, accused 2 appellants Sumer Dan, Kishore Singh and Sohan Singh have challenged their conviction and sentence recorded by the learned Additional Sessions Judge (FT), Balotra, Hqr.Barmer dated 21.12.2005 in Sessions Case No.8/95, whereby they were sentenced for various offences under the Indian Penal Code as under: ACCUSED APPELLANT KISHORE SINGH: U/S.326 IPC : Life imprisonment alongwith a fine of Rs.5000/- & in default, to further undergo one and a half years' imprisonment. U/S.323 IPC : Six months' R.I. U/S.343 IPC : One year's R.I. U/S.308 IPC : Seven years' R.I. alongwith a fine of Rs.2000/- & in default, to further undergo one year's imprisonment. U/S.120B read : Five years' R.I. alongwith a fine of with 343, 323, Rs.1000/- & in default, to further 384,326,308IPC undergo six months' R.I. ACCUSED APPELLANT SOHAN SINGH: U/S.323 IPC : Six months' R.I. 3 U/S.343 IPC : One year's R.I. U/S.120B read : Five years' R.I. alongwith a fine of with 343, 323, Rs.1000/- & in default, to further 384,326,308IPC undergo six months' imprisonment. ACCUSED APPELLANT SUMER DAN: U/S.326/114 IPC: Ten years' R.I. alongwith a fine of Rs.2000/- & in default, to further undergo one year's R.I. U/S.323 IPC : Six months' R.I. U/S.343 IPC : One year's R.I. U/S.308/114 IPC: Seven years' R.I. alongwith a fine of Rs.2000/- & in default, to further undergo one year's imprisonment. U/S.120B read : Five years' R.I. alongwith a fine of with 343, 323, Rs.1000/- & in default, to further 384,326,308IPC undergo six months' imprisonment. 2. In nutshell, the facts of the case are that on 5.2.1994, injured Jugta Ram submitted a written report, Ex.P.1 before the Superintendent of Police, Barmer that four days back, when he was going with liquor bottle, constable Kishore Singh met him in the way and asked him about the same. When he told that 4 he was carrying the bottle for someone else, accused Kishore Singh asked to deliver the liquor bottle to him, else to give money for liquor. During scuffle, the liquor bottle fell on the ground and was broken. Accused Kishore Singh took him at the Police Station Sadar Barmer, where accused Sumerdan ASI and Sohan Singh SHO locked him in the barrack for four days and gave beating with slaps and fists. On the day of the report in the morning at 7 A.M., Bheru Singh came there in whose shop he was working, who ousted him from his shop on account of allegation of his suspicious character. Constable Kishore Singh is the relative of Bheru Singh and in conspiracy with Sumer Dan and Sohan Singh, Sumerdan and Kishore Singh came in the barrack at 8 AM. Sumerdan caught hold of his neck by putting hand on his mouth & accused Kishore Singh cut his penis with a sharp object. A blanket was put on him. During this, Pura Ram and Bala Ram came there. He became unconscious on account of excessive bleeding and got consciousness in the hospital. 5 Yesterday, his brother Kheraj Ram came to meet him in the hospital and he told that if he will pay the sum of Rs.30 to 40 thousand, the police will leave him. This report was sent at the Police Station Kotwali Barmer on 6.2.94 at 2.30 PM, where a case u/ss.307, 326 IPC was registered. Initially, the investigation was handed over to Shri G.L.Verma, Addl.S.P., Barmer and thereafter the same was transferred to the CID, Crime Branch, which added the offences u/ss.343 and 120B IPC. Later on, at the instance of the State Government, the case was handed over to the S.P., C.B.I., Jodhpur for investigation, where the case u/ss.120B read with 326, 308, 343, 384 and 323 IPC and separately under Sections 326, 308, 343, 384 & 323 IPC was registered and investigation was commenced. During the course of investigation, accused Sohan Singh was absconding and when he appeared, a case No.44/94 was registered at Police Station Kotwali on the report of accused appellant Sohan Singh against injured complainant Jugta Ram. After investigation, the challan 6 was filed in the court of learned ACJM, SPE Cases, Jaipur from where the same was committed to the court of Distt. & Sessions Judge, Jaipur District & then transferred to the court of learned Additional Sessions Judge, Barmer. The arguments on charge were heard. Accused Sumerdan was charged u/ss.120B read with 343, 323, 384, 326 & 308 and separately u/ss.323, 343, 326/114 and 308/114 IPC. Accused Sohan Singh was charged u/ss.120B read with 343, 323, 384, 326 & 308 alongwith Sections 343 & 323 IPC. Accused Kishore Singh was charged for the offences u/ss.120B read with 343, 323, 384, 326 and 308 alongwith Sections 323, 343, 326 and 308 IPC. Accused Bheru Singh was also charged u/ss.120B read with 343, 323, 384, 326, 308 alongwith Sections 343/34, 323/34, 326/114, 308/114 and 384 IPC. All the accused pleaded not guilty. The prosecution examined 28 witnesses and produced 63 documents alongwith 18 articles. The statements of the accused were recorded u/s.313 CrPC, wherein they pleaded that the whole 7 case is false and politically motivated. They produced 9 witnesses and 28 documents in their defence. During the course of trial, accused Bheru Singh died on 11.3.2005 and the proceedings against him were dropped. After hearing the arguments, the learned trial Judge convicted the accused appellants as above. 3. While assailing the judgment of the learned trial Court, the learned counsel for the accused appellant Kishore Singh has submitted that the judgment of the trial Court is based on major contradictions, omissions and improvements, which cannot be affirmed. According to him, there is neither any criminal conspiracy nor it is proved that the accused appellant Kishore Singh cut the penis of injured Jugta Ram and on the contrary, it is established from the defence that the same was cut by the complainant himself and a case under Section 309 IPC was registered against him but due to heavy political pressure, the Final Report was given in that case. Mr.B.S.Rathore, learned 8 counsel for the appellant Sohan Singh and Mr.Sandeep Mehta, learned counsel for appellant Sumer Dan, have also criticized the judgment of the learned trial Court on the guilt of the accused appellants under various Sections of the Indian Penal Code, including Criminal Conspiracy and Abetment and submitted on the basis of statements of injured himself and of the investigating officer Sampat Raj (PW 27), Addl.S.P. that these two appellants were not present at the police station on the day of occurrence. According to the learned counsel for all the accused appellants, the character of complainant Jugta Ram was dubious, as he was having illicit relations with the wife and daughter of accused Bheru Singh, who has now died and because of this, he apprehended that he might be subjected to some criminal action, therefore, he lodged this false report by cutting his penis at his own. Further, due to political pressure, this false case has been registered against the accused appellants, especially under the circumstances that no blood was 9 found on the recovered sharp object. 4. Per contra, learned Public Prosecutor has supported the judgment of the learned trial Court and has submitted that the act of the accused appellants, who were the public servants posted at the same police station, is inhuman, especially under the circumstances that the complainant Jugta Ram was wrongfully booked in the barrack and his penis was cut. These accused appellants in their defence registered a false case against the injured complainant Jugta Ram, therefore, the judgment of the learned trial Court should be affirmed. 5. We have curiously appreciated the evidence in the light of the submissions made by the learned counsel for the appellants as well as the learned Public Prosecutor and the learned counsel for the complainant. 10 6. Since all the accused appellants have been convicted for the charge of criminal conspiracy punishable under Section 120B IPC read with ss.343, 323, 384, 326 & 308 IPC, therefore, at first, it will be proper to discuss the offence u/s.120B IPC said to have been committed by the accused appellants. In this regard, the most important evidence is of injured complainant Jugta Ram himself (PW 1), coupled with the testimony of the eye witnesses named by him and also of the investigating officer Sampat Raj (PW 27). 7. Injured complainant Jugta Ram (PW 1) has stated that he was servant of accused Bheru Singh for the last 8 years and resided at his residence for about 7 years. In the last one year, he took a separate house at Baldev Nagar. The family of accused Bheru Singh was residing on the ground floor and he was residing at the first floor. Bheru Singh was having two sons and three daughters. He used to take meals at his house. According to him, the wife and daughter Sagar Kanwar 11 of Bheru Singh had forcibly made illicit relations with him several times. The doubt was created in the mind of accused Bheru Singh. On 2.2.94 at 2 P.M., when he went at the house of Bheru Singh for taking meals and after taking the same, wife of Bheru Singh called him in her room but on hearing the voice of Bheru Singh, she opened the room & he left towards the shop. Bheru Singh saw towards him with evil eye. On that day, he gave collection to the son of Bheru Singh and after that, he purchased one liquor bottle for a sum of Rs.43/- from Prem Singh for one Bhoja Ram. At that time, Bheru Singh and Kishore Singh were standing at the shop of Bheru Singh. Kishore Singh was having blanket on his body and both were staring obliquely towards him at 8 PM in the night. When he was going towards his house at Baldev Nagar, accused Kishore Singh followed him and asked about the bottle. During the scuffle, the bottle was broken. Accused Kishore Singh took him at the police station Sadar Barmer, where Sohan Singh, SHO and some constables were 12 present. Sohan Singh slapped him. Bheru Singh also came there. This Kishore Singh, constable in the police, is the son of Bheru Singh's brother-in-law. Accused appellants Sohan Singh, Sumer Dan and Kishore Singh used to come at the residence of Bheru Singh and he was knowing them. He was kept in the police station for three days i.e. from 2nd to 5th Feb.1994 and no case was registered against him. In the evening of 3.2.94, Bheru Singh, Kishore Singh and Sumer Dan took him to barrack of the Police Station and started beating on account of some theft of money, where one Gaja Ram was also locked up. On 4.2.94 at about 2-3 PM, his brother Kheraj Ram also came with Bheru Singh, who told his brother Kheraj Ram that the police will take 40 to 50 thousand rupees. One stamp was also obtained from his brother Kheraj Ram for purchase of plot and wrist watch of Kheraj was snatched by Bheru Singh. At that time in the evening at 8-9 PM, Bheru Singh again came and took liquor with Kishore Singh, Sumer Dan & few constables. On 5.2.94 at 8 AM, Bheru Singh again 13 came at the police station alongwith Kishore Singh and Kishan Kumar. Kishore Singh caught hold of his hair. He was followed by Bala Ram & three more. Kishore Singh closed the windows of the barrack and Bheru Singh locked the gate of the barrack. Sumer Dan also came there. At the instance of Sumer Dan, he was beaten and all the three asked him about his illicit relations. When he was beaten with force, he agreed that he had relations with Gaj Kanwar wife of Bheru Singh. Upon this, Bheru Singh told to cut his penis then Sumer Dan told that he would die but Bheru Singh and Kishore Singh told that let him die. Bheru Singh and Sumer Dan caught hold of him and Kishore Singh cut his penis with `Ustra' (razor) by putting off his clothes and thereafter the blanket was put on him. Accused Bheru Singh, Sumer Dan and Kishore Singh told that they will kill him, if their names are taken. Gaja Ram was present at that time. His penis was put in his pocket and Kishore Singh took the razor with him. Sohan Singh was ofcourse present at the police station 14 but did not enter into the barrack and thereafter he was taken to the hospital and he narrated the story to the doctor and also to his brother Kheraj Ram, who came at the hospital with Pura Ram, Mukna Ram and 4 to 5 other persons. From this evidence, it appears that in the barrack, when the penis of complainant Jugta Ram was cut, Bheru Singh, Kishore Singh and Sumer Dan were present. Sumer Dan objected that if the penis was cut, he would die but despite that, Bheru Singh caught hold of him and Kishore Singh cut his penis with the `Ustra'. According to him, the principal eye witness is Gaja Ram, another accused of theft case, who has been examined as PW 3 but he has not supported the story of prosecution and he has turned hostile. 8. Kheraj Ram, PW 4 is the elder brother of injured Jugta Ram. He stated that when he enquired from Bheru Singh about the whereabouts of Jugta Ram, then Bheru Singh told him that he has been locked at the 15 police station on account of his bad character and allegation of theft. He went at the police station and saw Jugta Ram near the boundary wall of the police station. Upon asking, he told that he has been brought by constable Kishore Singh on 2.2.94. His wrist watch was also snatched by Bheru Singh and on demand of Rs.30 to 40000/-, he told to deliver the watch. Bheru Singh also demanded electric motor and plot. He somehow managed for the same. At Bheru Singh's shop, he heard that the penis of his brother has been cut by the police people and on hearing about his brother, he went at the hospital. He was not allowed by the police people to enter. One Mukna Ram took him in the Ward, where Jugta Ram was crying. Upon asking, he told that his penis has been cut by Kishore Singh, Sumer Dan and Bheru Singh. Upon this, he submitted report Ex.P.6 to the Collector, but in this report, he has not named any of the accused appellants. 9. Krishna Kumar Sharma, PW 25, another witness, as per the statement of Jugta Ram, has been examined 16 and stated that on the date of incident, he saw Bheru Singh at the Police Station, Jugta Ram was standing at the police station attached to the boundary of the Water Works Department. He has specifically stated that he did not see Sumer Dan on the day of incident at the police station. According to him, none of the accused gave beating to Jugta Ram in his presence at the police station. In FIR, Ex.P.1, complainant Jugta Ram has named Pura Ram and Bala Ram as the persons who witnessed this crime. Pura Ram has been examined as PW 21 but he too has been turned hostile. Bala Ram has not been examined by the prosecution. Another witness Mukna Ram, who has been named, has been examined as PW 20 but he is also a hostile witness. 10. Thus, none of the eye witnesses has said that the penis of Jugta Ram was cut by the accused appellant Kishore Singh with the aid of Sohan Singh and Sumer Dan. Now remains the solitary testimony of injured 17 Jugta Ram, PW 1 coupled with the testimony of his brother Kheraj Ram, PW 4 to whom he named Bheru Singh, Kishore Singh and Sumer Dan. In Ex.P.1, he has named Kishore Singh and Sumer Dan, who entered in the barrack, but in Court, he named Bheru Singh also. Since Bheru Singh has died, therefore, now nothing is to be discussed against him. According to the statement of Jugta Ram himself, even Sumer Dan, whose presence has been denied by the other witnesses, told that by cutting the penis, he will die but Bheru Singh and Kishore Singh told that let him die and thereupon, Bheru Singh caught hold of him and Kishore Singh cut his penis. Further, if the evidence of injured Jugta Ram is read in the light of testimony of investigating officer Sampat Raj, PW 26, who investigated the case as inspector of C.B.I., has specifically stated that in the cross examination that according to his information and record, accused Sumer Dan and Sohan Singh were not present at the spot on the day of crime. He has further stated that it 18 is true that on the date of incident, accused Sohan Singh and Sumer Dan were present at the Police Station Kotwali. This further falsifies the version of Jugta Ram that Sumer Dan was present at the time of commission of crime, though he has denied presence of Sohan Singh, SHO. That apart, Girdharilal Verma (PW 26), Addl.S.P., who investigated this case, has also stated in his cross examination that according to his investigation, accused Sohan Singh and Sumer Dan were not present at the Police Station Sadar, Barmer, where the incident took place. The evidence of the eye witnesses coupled with the testimony of the investigating officers, leads to only irresistible conclusion that the accused Sohan Singh and Sumer Dan were neither present at the time of commission of offence of cutting penis of injured Jugta Ram nor they have in any way conspired prior to the incident when complainant Jugta Ram was brought at the police station either for the purpose of culpable homicide not amounting to murder or to wrongfully confining him or 19 to inflict injury on his person for the purpose of extortion. Thus, the question of criminal conspiracy does not arise which is punishable under Sec.120B IPC for which the accused Sumer Dan and Sohan Singh have been punished. 11. Though it is not necessary that in criminal conspiracy, the presence of the accused at the time of commission of crime is required but to establish the charge of conspiracy, there must be pre-meeting of mind for commission of any crime. Even if the statement of complainant Jugta Ram is looked into, which is self contradictory with his FIR, Ex.P.1, it is clear that it was Bheru Singh and Kishore Singh, who met him when he was going to his house at Baldev Nagar first and constable Kishore Singh took him to the police station, where it is alleged that Sumer Dan and Sohan Singh were present but when the presence of these two accused appellants Sumer Dan and Sohan Singh is not established, then it is difficult to arrive at a 20 conclusion that these two accused had any role of criminal conspiracy punishable under Section 120B IPC or abetment defined under Section 114 IPC. Section 114 IPC can be attracted only when the offender is present when the act or offence is committed, whereas in the case of criminal conspiracy, the object to be accomplished, must be gathered with some plan or agreement or understanding between two or more persons. There must be some idea of formation or combination of an act. Though conspiracy is difficult to establish by direct evidence but there must be some knowledge in the mind of the offender about indulgence in illegal act. When from the initial stage of taking Jugta Ram to the police station till his penis was cut in the barrack, neither presence nor instigation nor indulgence of accused Sumer Dan and Sohan Singh is established, then they cannot be held liable for the offence u/s.120B IPC or u/s.114 IPC and the finding of the learned trial Court about guilt of these two accused on the basis of conspiracy and abetment cannot be 21 sustained in the eye of law. 12. Coming to the case of accused Kishore Singh, it is alleged that he took initially complainant Jugta Ram to the police station Sadar, Barmer on 2.2.94 after 8 PM and kept him in the barrack and the penis of complainant Jugta Ram is said to have been cut there by Kishore Singh with the aid of Bheru Singh and others on 5.2.94 at 8 AM. This portion has been marked as point `T' and `G' in the site plan Ex.P.35, where the blood and blade were found. Both are open places of the police station. Portion `T' is shown to be a place where blade was found with blood stained soil. This portion `T' is outside the barrack `E' and portion `G' is near the boundary wall, therefore, from this site plan also and site inspection note Ex.P.36, accused was sitting at place `T' i.e. outside the barrack of constables. This shows that he was not booked in the lock up but the incident is said to have taken place outside the barrack, where Kishore Singh is said to 22 have cut the penis of complainant Jugta Ram, who was posted at the police station at the relevant time. It is just possible that he being the Constable of Sadar Police Station brought injured Jugta Ram at the police station on 2.2.94 after 8 PM without the knowledge of Sohan Singh, SHO and Sumer Dan, ASI. Many relatives and visitors of police personnels posted at the police station, enters the police station without the knowledge of the incharge and as a consequence thereof, the incharge of the police station cannot be held liable for wrongful confinement of a person. Further, as per the Rojnamcha, Ex.P.17 dated 5.2.94, injured complainant Jugta Ram was brought at the Police Station for interrogation in connection with the Case No.20/94. The statement of Girdhari Lal Verma, PW 26 that accused Sohan Singh and Sumerdan were not present at the police station Sadar, Barmer at the time of commission of offence further fortifies the fact that these two appellants cannot be held liable for wrongful confinement punishable u/s.343 IPC. Since the 23 wrongful confinement by accused Kishore Singh is not exceeding 3 days i.e. from 2.2.94 at 8 PM till 5.2.94 at 11.40 AM vide Rojnamcha, Ex.P.17, Injury report Ex.P.2 dt.5.2.94 at 12.20 PM and bed head ticket Ex.P.8 dt.5.2.94 at 12.10 PM, therefore, accused Kishore Singh alone is liable for the offence u/s.342 instead of Section 343 IPC. Likewise, all the three appellants cannot be held liable for the offences u/ss.323 and 308 IPC on the basis of medical evidence. 13. The defence that injured Jugta Ram himself cut his penis, is devoid of force in the light of the above discussion. 14. From the medical evidence, it is only established that there was permanent deprivation of penis with the sharp edged weapon, which is punishable under sections 326 IPC. In this regard, the testimony of Dr.Madan Mohan Purohit PW-2 who initially prepared injury report Ex.P.2, Dr.H.K.Singhal PW-6 who 24 prepared the bed head ticket Ex.P.8 and Dr.Malti Gupta PW-27 who conducted operation at SMS Hospital, Jaipur vide Ex.P.39, is material, who have clearly stated that there was no danger to the life of injured. Therefore, offence