1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T 1. D.B. CRIMINAL APPEAL No. 29 of 1983 BACHAN SINGH & ORS. V/S STATE 2. D.B. CRIMINAL APPEAL No. 46 of 1983 AJMER SINGH & ANR. V/S STATE Date of Judgment : 31st March, 2009 PRESENT HON'BLE SHRI N.P.GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. Mr. M.K.Garg & Mr. JR Choudhary, for the appellants. Mr. AR Nikub, P.P. BY THE COURT: (Per Hon'ble Gupta, J.) These two appeals have been filed by different accused persons against the common judgment of the learned Additional Sessions Judge, Raisinghnagar dt. 14.1.1983, convicting them as under:- Bachan Singh s/o Gurdayal Singh:- u/s.148, 307, 302, 323/149, 324/149 and 326/249 IPC. Gurcharan Singh s/o Gurdayal Singh:- u/s. 148, 307/149, 302/149, 326 in the alternative 326/149, 324 in the alternative 324/149 and 323/149 IPC. 2 Ajmer Singh s/o Ramrakha :- u/s. 148, 307/149, 302/149, 326/149, 324/149 and 323/149 IPC. Makhan Singh s/o Gurbachan Singh:- u/s. 148, 307/149, 302/149, 326/149, 324/149 and 323/149 IPC. Gurdayal Singh s/o Jawala Singh:- u/s. 148, 307/149, 302/149, 326/149, 324/149 and 323/149 IPC. And therefore, both these appeals are being decided by this common order. Appeal No. 29 has been filed by four accused persons, being Bachan Singh, Gurcharan Singh, both sons of Gurdayal Singh, Gurdayal Singh s/o Jawala Singh, and Makhan Singh s/o Gurbachan Singh, while Appeal No. 46 has been filed by two accused persons, being Ajmer Singh and Harnam Singh. During pendency of the present appeals accused Gurdayal Singh in Appeal No. 29, and accused Harnam Singh in Appeal No. 46, have died, which fact is not in dispute, consequently the appeals of both these accused abate. Thus, the appeals survive on behalf of only four accused persons, being Bachan Singh, Gurcharan Singh, Makhan Singh and Ajmer Singh. Brief facts of the case are, that on 1.4.78 at about 10 past 6 in the morning Dharam Singh, P.W.1 lodged an oral report, to the effect, that he lives in Chak 40 NP, separately from his parents, while his parents and brother of the father lives in the Abadi of Chak No. 41 NP. Similarly Pyaru Singh and his wife 3 are also living for the last 3 months in 41 NP. With this, it was alleged, that some 7 days before the report, there was a dispute between Pyaru Singh and his wife Vidhya, and therefore, Vidhya left the matrimonial home, and contacted Nata with the younger brother of the informant, being Harnam Singh, and started living there with him. Then two days before the report, Panchayat was got convened by Pyaru Singh, wherein it was resolved, that Vidhya would be handed over back to Pyaru Singh. This was accepted by the father of the informant, and she was to be returned on the morning of the day of the report. Since Vidhya had gone to her parental house, in the last evening she was brought back to his father's house, and the father told the informant, that she is to be handed over to Pyaru, then the informant went to his house. However, at about 12.30 in the night, one tractor of Madho Singh came to house of Kehar Singh in Chak 40 NP, wherein some persons being resident of 41 NP were there, which aroused suspicion, then after some time he went to his father's house, and saw that near their house, Gurdayal Singh, Harnam Singh, Gurbachan Singh, Ajmer Singh, Bachan Singh, Makhan Singh, Gurcharan Singh @ Charni, Pyaru and younger son of Bachan Singh, along with 2-3 more persons being Bawari r/o Chak 41 NP were collected. Bachan Singh was armed with double barrel muzzle loading gun, while others were armed with Lathis and Gandasi. On looking at them he told his father, Bahnoi Gurdayal Singh and Santa Singh etc. about this fact. Then, along with informant's father 4 they came out. Informant's father told Bachan Singh etc. as to how they had come at this odd time. Thereupon accused persons encircled them, and blocked way of the house. Then, in order to save themselves, they ran towards 40 NP, and after travelling about 2 killas the accused persons chased them, and at that time Bachan Singh fired at the informant, which fortunately did not hit. Then, his father and Bahnoi Gurdayal Singh were caught from behind by the accused, Gurdayal Singh and Harnam Singh etc., and injuries were inflicted on him with Gandasi and Lathi. In the meantime Bachan Singh also arrived, and he fired the second shot on the informant's father Arjun Singh, which hit on the chest, who died on the spot. However, he could be able to snatch the gun from Bachan Singh, and at that time injuries were also inflicted on his right hand, and head, with Gandasi and Lathi, then looking many persons coming from towards 40 NP, accused persons took to heals. Then, it started raining, and on its stopping, he has come to lodge the report. The dead body is lying in the field. On this report a case under Section 302, 307, 326, 324, 323, 447, 147, 148, 149 IPC and 27 Indian Arms Act was registered, and investigation was commenced. After completing the investigation, challan was filed by the police against nine accused persons, being Ajmer Singh s/o Ramrakha, Bachan Singh s/o Gurdayal Singh, Gurcharan Singh s/o Gurdayal Singh, Makhan Singh s/o Gurbachan Singh, Pyaru @ Pyara Singh, Harnam Singh s/o Sunder Singh, Bachan Singh @ Gurbachan Singh, Gurdayal 5 Singh s/o Jawala Singh, and Baldev Singh s/o Gurbachan Singh. Learned trial court framed charges against the accused persons for different offences, inasmuch as accused Bachan Singh was charged for the offence under Section 148, 307, 302, 324 and in the alternative 324/149, 323 and in the alternative 323/149, 326 and in the alternative 326/149 IPC and 27 of the Indian Arms Act, while all other accused persons were charged for the offences under Section 148, 307/149, 302/149, 324 and in the alternative 324/149, 323 and in the alternative 323/149, 326 and in the alternative 326/149 IPC. All the accused persons denied the charges. During trial the prosecution examined 14 witnesses, and tendered in evidence some 46 documents, while the defence did not lead any evidence in defence. In the statements under Section 313 Cr.P.C., the stand taken by some of the accused persons, (specially the accused persons whose appeal survives, except Makhhan Singh) was, that Bachan Singh along with four more persons were sent by the Panchayat to call Arjun Singh (deceased), whereupon five persons went to the house of Arjun Singh, and conveyed that Panchayat is calling them, at that time at the house of Arjun Singh, apart from Gurdayal Singh four more Gundas were there, while Dharam Singh was not there, and those persons told them, that “पचयत क जन क पत 6 ” हम द त ह , and started giving beating. Accused Bachan Singh also stated, that he and his companions started rushing towards village, still he was beaten, and his companions also tried to save, and in that process Dhakka Mukki was done, and he does not know as to how Arjun Singh died. Bachan Singh did not give name of his other companions. However, the accused Gurcharan Singh disclosed, that Panchayat had sent him, Bachan Singh, Gurdayal Singh, Harnam Singh, and Ajmer Singh, to call Arjun Singh. Regarding the other four accused persons, stand was taken that they have been falsely implicated, because they are taking side of Pyaru Singh. Learned trial court after completing the trial acquitted the accused Pyaru @ Pyara Singh, Gurbachan Singh s/o Krapa Ram and Baldev Singh s/o Gurbachan Singh, while convicted the other six accused persons as above. It may be observed here, that accused persons, victim, and the prosecution witnesses also some times bears the same name, and therefore, at times, they would be referred to as the accused, or as the witness. Arguing the appeal, learned counsel for the appellants submitted, that the prosecution is sought to be rested on the evidence of the family members, or near relations, apart from the fact, that three witnesses P.W. 5, P.W. 6 and P.W.7, being Gurbachan injured, Santa Singh, and Bhagwan Singh have not 7 supported the prosecution case. Then it was submitted, that five of the accused persons, being Gurdayal Singh, Ajmer Singh, Harnam Singh, Gurcharan Singh, and Gurbachan Singh are also injured persons, as is proved from their respective injury reports being Ex.P-40 to Ex.P-44, which have been duly proved by the doctor P.W. 13 Dr. Surendra Mohan Sharma, and a look at them shows, that according to Ex.P-40 Gurdayal Singh had 5 injuries, according to Ex.P-41 Ajmer Singh had 2 injuries, according to Ex. P-42 Harnam Singh had 6 injuries, according to Ex.P-43 Gurcharan Singh had 3 injuries and according to Ex.P-44 Gurbachan Singh had 20 injuries, and out of that, there is a fracture of 7th rib, as is clear from X-Ray Report Ex.P-46. While none of the prosecution witnesses have explained any of these injuries, which are huge in number, which clearly shows, that the prosecution has come up with false case, and the real story is, as deposed by the accused persons, in their statement under Section 313 Cr.P.C., and as deposed by P.W. 2 Gurdayal Singh, who had been declared hostile, and all this clearly shows, that the alleged act of the accused persons was clearly covered by their right of private defence. Then, elaborating the argument it was also submitted, that the star witness P.W. 1 Dharam Singh, who claims to be eye witness, is the son of the deceased Arjun Singh, various infirmities in his statement have been highlighted, by submitting, that even according to this witness P.W.1, he had already gone to his house at Chak 40 NP in the night, and thereafter there was 8 no occasion for him to go to Chak 41 NP, and he has cooked up the occasion about tractor of Madho Singh having come to house of Kehar Singh, wherein many persons were travelling, but then, neither Madho Singh nor Kehar Singh was examined by the prosecution, even though they are also shown as Motbirs of various memos. Then, even if it is assumed that he had gone, the story about his seeing the accused persons, identifying them, and conveying it to his father Arjun Singh, is thoroughly discrepant, and at various places varying versions have been given, viz. whether the accused persons were sitting ambush the heaps of grass (kumpa) which are scattered on the spot, or they were outside the house, whether he identified them in the torch light, and then informed the father, or only on hearing that some people are camping in the field at different places in suspicious circumstances, informed this fact to his father, then he along with his father, and other persons came out of the house, and called the camping persons their object of being there, and identified them in the torch light etc. Then, it was also submitted that the place where the dead body is lying is at a distant place from the house, and two empties have been recovered from different killas. Then, in the photograph a cloth Potli is also visible, which also shows, that it is the defence version, which is clearly correct, that in the dead hour of the night the accused persons were going to take away Vidhya at village 1-MD, and there the trouble arose. Then, according to P.W.1 the gun 9 was fired from the close range, while according to Doctor there is dispersion in the entry wounds. Then, regarding gun also there are discrepancies, inasmuch as according to the witness P.W.1 he had handed over the gun in the police station before lodging the report, while according to I.O. P.W.9 Prakash Chand, he had recovered the gun from the witness P.W.1 Dharam Singh. It was also submitted, that he clearly denies to have seen any injuries on any of the accused persons, which belies the fact of his being eye witness. It was also submitted that the witnesses are two brothers only, the other being Harnam Singh, with whom Vidhya had contacted Nata, and who is physically disabled. Thus, no reliance could be placed on this witness, whereas the learned trial court had placed implicit reliance on this witness P.W.1 Dharam Singh, for finding six accused persons guilty, which is clearly bad. It was also submitted, that occurrence is said to have occurred at 1 in the night, and it is stated that the whole night it rained, and report is said to have been lodged at 10 past 6 in the morning, but it reached the Magistrate at 15 past 5 in the evening, which shows that F.I.R. was subsequently manipulated. It was also submitted, that in the F.I.R. there is no mention about there being any torch with him. It was also submitted, that according to the F.I.R. the accused persons had camped near the house, while in the court statement he has deposed, that they were camping behind the grass heaps. Admittedly no occurrence had taken place at the house. It was also 10 submitted that despite it having rained all over the night, the police had purported to collect the soil smeared with blood. It was also submitted that according to this witness, accused Harnam Singh and Gurcharan Singh @ Charni had inflicted injuries on him with Gandasi and Lathi, while according to Injury Report Ex.P-39, he had sustained only two abrasions, which are blunt weapon injuries. It was also submitted that village 41 NP is having an Abadi of about 100 houses, but nobody came even to intervene, and no one from the Abadi has been produced. Then, commenting upon the conduct of the witness, it was submitted, that after incident the witnesses have gone to the house, and slept, while the deceased was allowed to be kept lying at the place of incident itself. Regarding non explanation of injuries on the accused persons, learned counsel relied upon the judgments of the Hon'ble Supreme Court, in Shiv Karan Vs. State of Rajasthan reported in 1998 SCC(Cri.)-712, Lakhwinder Singh Vs. State of Punjab reported in 2003 SCC(Cri)- 1426, and Balwan Singh Vs. State of Haryana reported in (2006) 1 SCC (Cri) 108. Learned Public Prosecutor, on the other hand, supported the impugned judgment. We have considered the submissions made by the learned counsel for the appellant, and have gone through the entire record very closely. 11 At the outset it may be observed, that learned counsel for the appellant is right, when he contends, that the statement of star witness P.W.1 Dharam Singh contains infirmities, and does contain improvements, and is the son of the deceased, but then, this require us to scan the statement of all the material on record very closely, to find out as to whether his evidence is to be discarded altogether, or has rightly been relied upon by the learned trial court. We find, that out of the prosecution witnesses examined P.W.1 Dharam Singh, P.W.2 Gurdayal Singh, P.W.3 Harnam Singh, P.W.4 Vidhya, P.W.5 Gurbachan Singh, P.W.6 Santa Singh, P.W.7 Bhagwan Singh, and P.W.11 Rajkaur have been produced as eye witnesses/ material witnesses to substantiate the prosecution case, while P.W. 13 and 14, Dr. Surendra Mohan Sharma, and Dr. Ramlal Goyal are the doctors who had examined the injuries of the injureds and the deceased. Out of these eight important witnesses, as noticed above, P.W.2 Gurdayal Singh, P.W. 5 Gurbachan Singh, P.W. 6 Santa Singh, and P.W. 7 Bhagwan Singh have not supported the prosecution, and therefore, they have been declared hostile. At this place we may also observe, that it is of course established legal position, that the accused persons are not bound to give out their version of the incident, much less correctly. Their statement under 12 Section 313 are to be recorded for the purpose of enabling them to explain the evidence and circumstances appearing against them in the prosecution case, but they are not bound to explain it either, and even if they do not explain, any adverse inference cannot be drawn on that account against them, and the prosecution, of course, is bound to project the case correctly, and prove it beyond all reasonable doubt, in order to bring home guilt against the accused. But then, it is also established legal position, that if the accused persons offer explanation in their statement under Section 313 Cr.P.C., that can be used in deciding the case, and can be used against the accused persons as well. Though it is the duty of the prosecution to lead correct and truthful evidence, but then, if on some aspects the witness chose to lie, or make improvements, their entire evidence cannot be thrown out altogether, as in criminal case “falsus in uno falsus in omnibus” is not the principle applicable in India. Keeping in mind the above principles, we have to appreciate the evidence of the prosecution, in conjunction with the defence, with the explanation given out by the accused persons, of the story projected by them in the evidence, and find out, as to whether from the reliable part of the evidence of the prosecution, any offence is brought home to all, or 13 any of the appellants, whose appeal survives. As noticed above, it was argued that the prosecution has sought to rely, and rest its case on the evidence of family members, and near relations only. In our view, it is established legal position that the testimony of witness cannot be thrown away simply on the ground of his being a family member, or near relation of the victim. The evidence of such witness may be required to be examined, more critically, which we shall do. So far as three witnesses P.W.5, P.W. 6 and P.W.7, having not supported the prosecution case is concerned, we shall examine the case on the basis of other evidence available on record. Then, coming to the effect of injuries found on the person of the accused, and the prosecution having cooked up false case, and the real story being the one, as deposed by the accused persons in their statement under Section 313, and as deposed by P.W.2 Gurdayal, we shall consider this aspect later, after appreciating the evidence of the two witnesses Dharam Singh and Gurdayal, in conjunction with the statement of the accused persons recorded under Section 313. Obviously, at that time we shall also examine the aspect, as to whether the act of the accused is protected by their alleged right of private defence. 14 Since the learned trial court has relied upon the evidence of Dharam Singh P.W.1, in convicting the six appellants, we better stand advised to first of all critically examine the evidence of this star witness Dharam Singh. Dharam Singh in his evidence has deposed, that he lives in 40 NP, while his parents and brother live in 41 NP. His Bahnoi Gurdayal Singh (P.W.2) lives with his father (Arjun Singh). Then he stated that some six months back Vidhya, the wife of Pyaru had contacted Nata with his brother Harnam. Three days thereafter Pyaru called a Panchayat, which decided, that Vidhya should be handed over back to Pyaru, to which his father agreed. Then, on the next day of decision of Panchayat, Gurdayal Singh had gone to fetch Vidhya from her parental house. Then, Gurdayal Singh, Bachan Singh, Mst. Bhago and Santa Singh had brought Vidhya from her parental house to his father's house, who reached at 6 in the evening, at which time he was there at the father's house. Then, he went to his own house. Then, he stated that at about 12 in the night, tractor of Madho Singh came from 41 NP to 40 NP at the house of Kehar Singh, wherein 5-6 persons were travelling, being Kehar Singh, Hajara Singh, Chanan Singh, Madho Singh, and one more person, who were telling, that at the house of Arjun Singh some Gundas have come, thereupon he went to 41 NP to see his father, he threw torch light and saw that 8-9 people were camping near Kumpas, and identified them as 15 accused Bachan Singh s/o Gurdayal Singh, Charni s/o Gurdayal Singh, Makhan Singh s/o Arjun Singh, Baldev Singh s/o Bachan Singh, Harnam Singh s/o Sunder Singh, Ajmer Singh, and some more persons were there, to whom he had seen in the light of torch, he does not remember. Then, he awakened his father, who asked all the persons as to who they are, whereupon those persons encircled them. Then, he, his father, Gurdayal Singh and Bachan Singh s/o Gurdayal Singh ran away, at that time accused Bachan Singh fired at him, which did not hit, then all the accused persons came near them, and then accused Bachan Singh fired shot at his father, which hit on the chest, and the other accused persons inflicted injuries with Lathis and Gandasies on his father, and on him. Injuries were caused to Gurdayal Singh also. He stated, that he was having a Lathi, which was also wielded by him. Then, when Bachan Singh was re-loading the gun, he snatched it, which gun was double barrel muzzle loading gun, in the meanwhile tractor of Madho Singh came, and seeing that all the accused persons ran away, his father died on the spot. Then, he has stated that Bachan Singh had gun, Harnam Singh and Charni were armed with Gandasa, Ajmer Singh was armed with Sela, and others were armed with Lathis. Then, at 6 in the next morning he lodged report at Police Station Raisinghnagar, and proved Ex.P-1. Then, police people came with him and prepared Inquest Report, and other Memos Ex.P-4 to P-9, which he has proved to be bearing his signatures. Empties were recovered from the spot. He had produced the gun 16 to the police, and soil was also collected from the spot. This is the entire statement, in examination in chief. Then, in cross examination he has stated, that there had been no enmity earlier with Gurdayal Singh and his sons, though they were not on visiting terms, but he was knowing them, though he did not know entire family. He stated to be living in 40 NP for the last 20-25 years. However, for the last 3 years he is living in 41 NP, which is inhabited by around 40 houses, while Chak 41 NP has about 100 houses. He has denied to be knowing accused Harnam Singh, being Behnoi of Gurbachan Singh. According to him Pyaru and Vidhya were residing in 41 NP for the last 3 months before the incident, though they had no land or property in 41 NP, and were living in the house of Pratikaur. He had purchased a cow from Pyaru. Then, he stated that Vidhya had gone with Gurdayal Singh to Raisinghnagar for getting recorded her statement. Gurdayal Singh is said to be Bahnoi of the witness, and to be a witness in the case. Vidhya was deposed to be resident of 16-O, and the way to that village is through Raisinghnagar. Kehar Singh, Madho Singh, Bhag Singh, Chanan Singh and Hajara Singh are not on inimical terms with him. They were Panchas in Panchayat, and witness was also present in the Panchayat, where his father had stated, that Vidhya is living voluntarily, and he has denied suggestion about having denied to return Vidhya, rather they asked for 17 two days time to return her. He has stated that Gurdayal had gone on foot to fetch Vidhya, and while returning, they came in a jeep, along with many more persons. He stated that in the F.I.R. he did not mention about Gurdayal having been sent to fetch Vidhya. Witness Gurbachan Singh was said to be Bahnoi of witness' Bahnoi. Then he stated, that after Vidhya having come to his house he had gone to 40