1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ----------------------------------------------------- (1) CR. APPEAL No. 757 of 2004 GYAN SINGH V/S STATE (2) CRIMINAL APPEAL No. 833 of 2006 STATE V/S GURCHARAN SINGH & ORS. Date of Judgment : 13.05.2009 HON'BLE SHRI AM KAPADIA,J. HON'BLE SHRI DEO NARAYAN THANVI,J. Mr. Chaitanya Gahlot for accused persons. Mr. K.R. Bishnoi, Public Prosecutor. JUDGMENT ----- BY THE COURT (PER HON'BLE MR. A.M. KAPADIA, J.): 1. Nine accused persons viz., Gyan Singh, Gurcharan Singh, Nand Kaur, Jaswant Singh, Ram Singh, Sarjeet Kaur, Amarjeet Kaur, Raj Kaur and Pal Kaur (accused A-1 to A-9 respectively, for short) were charged and tried by the learned Sessions Judge, Sri Ganganagar, in Sessions case No. 9 of 2004 for the offence under Sec. 148, 302, 302/149, 332, 2 332/149, 395 of the Indian Penal Code (‘IPC’, for short) and Sec. 3/25 of the Arms Act, on the accusation that on the day of incident i.e. 26.09.2003 they by forming an unlawful assembly assaulted deceased ASI Ramdhan, who intercepted them in connection with some dispute regarding possession of Munsha Singh in Gurudwara premises, Hakamabad where deceased Munsha Singh was a ‘Granthi’ at the relevant time and who died custodial death on 06.10.2003. Munsha Singh inflicted Kripan blow on the head of Ramdhan, accused A-2, A-4 & A-5 caught hold of Ramdhan and the female accused A-3, A-6 to A-9 pelted stones while Gyan Singh accused A-1 snatched revolver of Ramdhan and fired one shot on him, as a result of which Ramdhan died in hospital later on. 2. At the end of trial, accused A-1 Gyan Singh was found guilty for the offence under Sec.302 IPC for committing murder of Ramdhan and also for the offence under Secs. 333, 379 IPC and Sec.3/25 of the Arms Act, he was, therefore, sentenced as under: 3 U/s.302 IPC Life imprisonment and fine of Rs.1000, in default of payment of fine further six months’ simple imprisonment U/s 333 IPC Three years’ rigorous imprisonment and fine of Rs.500, in default of payment of fine further three months’ simple imprisonment U/s 379 IPC Two years’ rigorous imprisonment and fine of Rs.500, in default of payment of fine further three months’ simple imprisonment U/s 3/25 Arms Act One year’s rigorous imprisonment and fine of Rs.500, in default of payment of fine further three months’ simple imprisonment 3. So far as accused A-2 Gurcharan Singh is concerned, he was found guilty for the offence under Sec. 324, 332 while accused A-4 Jaswant Singh and A-5 Ram Singh were found guilty under Sec. 353 IPC and all these three accused were sentenced to the period already undergone by them during trial and have not preferred appeal against their conviction. Rest of the accused i.e. A-3 Nand Kaur, A-6 Sarjeet Kaur, A-7 Amarjeet Kaur, A-8 Raj Kaur and A-9 Pal Kaur have been acquitted of all the offences with which they were charged. 4. Aggrieved by the impugned judgment and order, accused A-1 Gyan Singh filed D.B. Criminal Appeal 4 No. 757 of 2004 with the aid of Sec.374 of the Code of Criminal Procedure (‘Code’, for short) challenging the conviction recorded against him for offence under Sec.302 IPC whereas the State of Rajasthan has filed D.B. Criminal Appeal No. 833 of 2006 challenging acquittal of accused A-2, A-4 & A- 5 for the offence under Sec.302 IPC. 5. The prosecution case, as disclosed from the FIR and unfolded during trial is that on 26.02.2003 complainant PW2 Krishan Kumar Constable submitted a report to the SHO, Lalgarh Jatan for registering First Information Report alleging inter- alia that for resolving the dispute in connection with the residence of Munsha Singh in Gurudwara premises, Hakmabad, a meeting was held in the Panchayat Bhawan, in which SDM, Sri Ganganagar; Dy. Superintendent of Police, Sadulsahar; SHO, Lalgarh Jatan; Sarpanch, Up-Sarpanch and persons of Baori community were present and it was decided that Munsha Singh would give up his possession and for that purpose they started for Gurudwara but did not reach there where the Administrative Officers, Police Authorities and the 5 villagers were waiting for them. It was informed by someone at that time that Munsha Singh accompanying his family members had proceeded for Sri Ganganagar in a jeep so the police personnel were directed to bring them. Assistant Sub Inspector Ramdhan and complainant PW2 Krishan Kumar, Constable went in a private jeep to search and bring them back. At about half past 2 O’ Clock, when they reached near Abohariya Bus Stand, they found Munsha Singh and his family members going towards Sri Ganganagar side in a jeep, who were stopped and told that people were waiting for them in Hakmabad at which Munsha Singh, his four sons and ladies got excited and started beating ASI Ramdhan and also the complainant. It was further alleged that Munsha Singh gave a blow of ‘Kripan’ on the head of ASI Ramdhan and when Ramdhan tried to save himself, he was beaten again and accused A-1 after snatching his revolver a shot was fired on his chest. It was also alleged that other accused pelted stones on them and on reaching police team at the place of incident, the accused persons ran away towards fields. Police party taken ASI Ramdhan to hospital where he was declared 6 dead. 6. On the basis of aforesaid report, police registered FIR No.202/03 against accused persons for the offence under Sec.147, 148, 353, 302, 395 read with Sec.149 of the IPC and under Sec. 25 & 27 of the Arms Act and started investigation. Munsha Singh expired during investigation while in custody. 7. As incriminating evidence was found against all other nine accused persons i.e. A-1 to A-9, the police filed chargesheet against them in the Court of Judicial Magistrate, 1st Class, Sadul Sahar. The offence under Section 302 IPC being exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions Judge, Sri Ganganagar. 8. The learned Sessions Judge, Sri Ganganagar (‘trial Court’ for short), who conducted the case, framed charge against accused persons, which were read over and explained to the accused to which they pleaded innocence and claimed trial, therefore, they were put to trial in Sessions Case No.9 of 2004. 7 9. To prove the culpability of the accused, the prosecution has examined as many as 18 witnesses and relied upon number of documents. 10.After recording of the evidence of the prosecution witnesses was over, the trial Court recorded further statements of the accused as required under Sec.313 of the Code. In their further statements, all the accused denied the allegations leveled against them and stated that they are innocent persons and have been falsely implicated in this case. They further stated that SHO Ramdhan intercepted their jeep and caught Munsha Singh and as they were frightened, they ran away. Accused produced documents D/1 and D/2 i.e. the statements of Krishan Kumar, which were exhibited, however, in support of their defence, they did not lead any oral evidence. 11.On appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial Court has come to the conclusion that homicidal death of deceased Ramdhan is proved as he died on receiving the shot 8 fired from revolver. It is also held by the trial Court that the shot was fired by accused A-1 from revolver which was snatched from deceased Ramdhan and on receiving the injuries Ramdhan died, therefore, accused A-1 was held guilty for the offence of murder punishable under Sec.302 and sentenced to suffer imprisonment for life and fine of Rs.1,000, in default of payment of fine further six months’ simple imprisonment, so also for other offences as mentioned in foregoing paragraphs of the judgment. 11.1 So far as accused A-2 is concerned, the trial Court convicted him for the offence under Sec. 324 and 332 IPC whereas accused A-4 Jaswant Singh and A-5 Ram Singh were convicted for offence under Sec.353 of the IPC and they were sentenced to the period already undergone by them during trial. 11.2 The trial Court did not find the remaining female accused i.e. accused A-3 Nand Kaur, A-6 Sarjeet Kaur, A-7 Amarjeet Kaur, A-8 Raj Kaur and A-9 Pal Kaur guilty for any of the offences with 9 which they were charged and therefore acquitted them. 11.3 It is this judgment and order which has given rise to these two appeals being D.B. Criminal Appeal No. 757 of 2004 filed by accused A-1 challenging the order of conviction and sentence for the offence under Sec.302 IPC and D.B. Criminal Appeal No. 833 of 2006 filed by the State of Rajasthan challenging the acquittal of accused A-2 Gurcharan Singh, A-4 Jaswant Singh and A-5 Ram Singh of the offence under Sec.302 IPC. 11.4 It may be noted that the State of Rajasthan has not filed appeal against remaining accused i.e. accused A-3, A-6, A-7, A-8 and A-9, who were acquitted of all the offences with which they were charged. 12.As both the appeals arise out of the same judgment and order, therefore, they are heard together and decided by this common judgment. 13.Mr. Chaitanya Gahlot, learned counsel for accused 10 A-1 does not dispute the factum of killing Ramdhan by fire arm injury as homicidal death of Ramdhan is proved, however, he submits that this not a case of murder punishable under Sec.302 IPC but a case of culpable homicide not amounting to murder punishable under Section 304 Part II IPC as according to him incident had taken place all of a sudden when deceased Ramdhan intercepted Munsha Singh and prevented him from going to police station due to which there was altercation between them and Ramdhan being police officer forcibly tried to take him to Gurudwara, at that juncture, in the heat of passion this incident took place and accused A-1 inflicted only one fire arm injury. He does not dispute so far as conviction recorded against accused A-1 for the other offences is concerned. 14.So far as the appeal filed by the State challenging the acquittal of accused A-2 for the offence under Sec. 302 IPC and acquittal of accused A-4 & A5 for offence under Sec.302 IPC is concerned, there is no overtact attributed to them in killing of deceased Ramdhan, therefore, the judgment and order of 11 acquittal passed in favour of accused A-2, A-4 & A- 5 for offences under Sec. 302 IPC does not call for interference. 15.On the aforesaid premise, it is submitted by the learned counsel that the conviction recorded against accused A-1 for the offence under Sec.302 may be altered to Sec. 304 Part II for culpable homicide not amounting to murder and as accused A-1 is in jail for last 6 years, the sentence undergone by him may be treated as substantive sentence and he may be set at liberty whereas the appeal filed by the State challenging acquittal of accused A-2, A-4 & A-5 may be dismissed. 16.Per contra, Mr. K.R. Bishnoi, learned Public Prosecutor has supported the judgment and order of conviction and sentence recorded against accused A-1 for the offence under Sec.302 IPC. According to him, as there was intention on the part of accused A-1 to commit murder of Ramdhan, he was rightly convicted under Sec.302 IPC and not under Sec. 304 Part II, and therefore, no interference is called for in the impugned judgment 12 and order recording conviction against accused A-1 for the offence under Sec.302 IPC. So far as acquittal recorded in favour of accused A-2, A-4 & A-5 for the offence under Sec.302 IPC is concerned, it is not based on sound appreciation of evidence as they formed an unlawful assembly and caught hold of Ramdhan by sharing the common object, therefore, they are guilty for the offence under Sec.302/149 IPC. He, therefore, urged to dismiss the appeal filed by accused A-1 and to allow the appeal filed by State of Rajasthan and consequently accused A-2, A-4 & A-5 may be held guilty for the offence of murder of Ramdhan punishable under Sec.302 read with Sec.149 IPC and they may be sentenced to imprisonment for life. 17.We have considered the submissions advanced by learned counsel for the parties. We have also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record which is read and re-read by the learned counsel for the parties with reference to broad and reasonable probabilities of the case. While dealing with the case, this Court 13 has examined the entire evidence on record and considered the arguments advanced on behalf of the accused and infirmities pressed, scrupulously with a view to find out as to whether the trial Court has rightly recorded the order of conviction and sentence for the offence under Sec.302 IPC against accused A-1 and the order of acquittal passed in favour of accused A-2, A-4 & A-5 for offence under Sec.302 IPC. 18.There is no dispute to the fact that the deceased died a homicidal death. In this connection, the prosecution examined and relied upon the oral testimony of PW12 Dr. V.P. Aseeja, who has conducted postmortem on the dead body of the deceased. He has also issued the postmortem report which is on record as Ex.P/31. 19.On conjoint reading of oral testimony of PW12 Dr. V.P. Aseeja and the Postmortem Report Ex.P/31, it is seen that the deceased received as many as seven injuries and he died because of hemorrhagic shock due to injury to lungs and heart caused by firearm. Therefore, there is no manner of doubt 14 that the deceased died a homicidal death. 20.Since the learned Advocate for accused A-1 has not disputed the killing of Ramdhan and also inflicting injuries by accused A-1 by firing revolver, the question that requires to be answered by us is whether the offence committed by accused A-1 is of murder punishable under Sec.302 IPC or is culpable homicide not amounting to murder falling under Exception IV of Sec.300 punishable under Part II of Sec.304 IPC. 21.To prove the offence against accused, prosecution has mainly relied upon four eye witnesses; namely, PW2 Krishan Kumar, PW5 Ramswaroop, PW6 Naresh Kumar and PW15 Rameshwarlal. Out of these eye witnesses, PW5 Ramswaroop and PW15 Rameshwarlal have not supported the prosecution case. Therefore, in order to find out whether the accused committed the offence of murder punishable under Sec.302 IPC or culpable homicide not amounting to murder, we have to advert to the evidence of PW6 Naresh Kumar and PW2 Krishan Kumar. 15 22.PW6 Naresh Kumar in his examination in chief before the Court has supported the prosecution case, however, in his cross examination he has admitted that Gurcharan is handicapped, therefore, he cannot give blows by 'Kripan' as stated by him in his examination in chief. In his statement, he has said that he saw the incident at a distance of about 50 feet and cannot say how shot was fired. So far as PW2 Krishan Kumar, the constable posted at Lalgarh Jatan, who accompanied the deceased, is concerned, he has admitted that dispute was of intense nature and all the accused were under pressure of the administration. He has also stated that Munsha Singh and his four sons were also there and arrived at a compromise to vacate the premises in question and to implement the compromise all the authorities and the police party went to 'Gurudwara'. He has also stated that compromise was not agreeable to the accused and for that reason they did not reach the spot. He has also testified that the officers at the spot told for bringing the accused party and for that purpose deceased Ramdhan alongwith Krishan Kumar, 16 Ramswaroop, Naresh and Rameshwarlal started in a jeep. 23.On overall re-appreciation of the evidence of above two witnesses, there is no manner of doubt that prior to incident, compromise between deceased Munsha Singh, on the one hand, who died custodial death, and Gurudwara on the other hand arrived at, which was not agreeable to the accused persons, and therefore Munsha Singh and his family started for going to Sri Ganganagar for lodging the complaint and the police party did not want that they should lodge the complaint, therefore to prevent them from lodging complaint, police party chased them and intercepted on the way. At that time quarrel took place between Munsha Singh and deceased Ramdhan. Deceased Munsha Singh gave ‘Kripan’ blow and there was hot exchange of words between them. Deceased Ramdhan was mindful to bring them to Gurudwara for acting upon the compromise and therefore Munsha Singh gave ‘Kripan’ blow and accused No.1 snatched revolver and fired one shot on Ramdhan and thereafter immediately all accused flee away from the scene of 17 offence. 24.On the basis of aforesaid evidence, it cannot be said that there was intention on the part of accused A-1 to kill deceased Ramdhan. They only wanted to get rid of Ramdhan as deceased Ramdhan wanted to take them to Gurudwara and they wanted to go to Sri Ganganagar to lodge a complaint. Had accused A-1 was mindful to kill deceased Ramdhan by taking undue advantage, then he would have fired more than one shot from the revolver. Therefore, according to us, accused A-1 has not acted in any cruel or unusual manner nor he has taken undue advantage of the situation. 25.In the case of Lachman Singh Vs State of Haryana (2006) 10 SCC 524, the Supreme Court has held that if occurrence takes place in course of sudden quarrel, conviction of appellant is required to be altered from Sec. 302 to 304 Part I IPC. 26.In the case of Harendra Nath Borah Vs. State of Assam 2007 AIR SCW 4631, Supreme Court has clearly set out the distinction between 'murder' and 18 culpable homicide not amounting to muder. In the said case, deceased truck Driver was assaulted by accused police personnel and thereafter left on the road after he became senseless. In that case, the Supreme Court has altered conviction recorded under Sec.302 to 304 Part I IPC. 27.Applying the principle enunciated by Supreme Court in above referred two decisions to the facts of the present case, there is evidence to the effect that deceased Munsha Singh, who died custodial death after this incident, was in possession of premises in Gurudwara for many years, therefore, compromise was entered between Munsha Singh and Gurdwara, however, he was not happy with the compromise therefore he alongwith his family members was going to lodge complaint at Sri Ganganagar. The police intercepted them on the way to bring them to Gurdwara and scuffle took place between accused party and deceased Ramdhan and other police personnel and in that scuffle there was hot exchange of words and since the accused did not want to go to Gurudwara, in a sudden excitement accused A-1 snatched revolver 19 of Ramdhan and fired one shot on Ramdhan and thereafter all flee away. If he was mindful to take undue advantage, then he would have fired more than one shot. Therefore, the act of the accused falls is exception 4 of Sec.300 IPC punishable under Part I of Sec.304 IPC. 28.Now the next question which is to be answered by us is as to what sentence should be awarded to accused A-1 for commission of offence of culpable homicide not amounting to murder under Sec. 304 Part I IPC. 29.In catena of decisions pronounced by the Supreme Court, normal sentence for the offence under Sec. 304 Part I varies from 7 years to 10 years and in the instant case according to us if sentence of 7 years is imposed, same would meet the ends of justice. So far as conviction and sentence recorded against accused A-1 for other offences is concerned, we do not want to disturb the order of conviction and sentence as learned counsel does not dispute the same. 20 30.Now this takes us to examine D.B. Criminal Appeal No.833/06 filed by State of Rajasthan challenging the acquittal recorded in favour of accused A-2, A-4 and A-5 for the offence under Sec.302 IPC. 31.Before we proceed to examine the merits of the acquittal appeal, it would be appropriate to refer to the principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the trial Court. In the case of Ajit Savant Majagavi v. State of Karnataka, reported in AIR 1997 3255, the Supreme Court has laid down the principles which read as under: (a)In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction. (b)The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by trial Court, if the said findings are against the weight of the evidence on record, or in other words, perverse. (c)Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds not subscribing to the view expressed by the trial Court that the accused is entitled to acquittal. 21 (d)In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial Court. (e)If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favour the accused should be adopted. (f)The High Court has also to keep in mind that the trial had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court, especially in the witness box. (g)The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused. 50.In Anok Singh Vs. State of Punjab, reported in AIR 1992 SC 598, the Supreme Court has held that in an appeal against acquittal, the High Court should attach greater weight to appreciation of evidence by the trial Judge who had the occasion to watch the demeanour of the witnesses. 51.Keeping in forefront the principle enunciated by the Supreme Court in above referred three judgments, if 22 we examine the case of the prosecution against accused A-2, A-4 and A-5, according to us, no overtact is attributed to them. They inflicted only simple injuries to the informant and other witnesses. So far as the evidence of PW6 Naresh Kumar is concerned, there is no reliable, trustworthy or clinching evidence that the three accused caught hold of deceased Ramdhan. No overtact is attributed to them for killing Ramdhan, therefore, according to us, the trial Court has rightly recorded acquittal of accused respondent A-2, A-4 and A-5 for the offence under Sec.302 IPC. 52.On overall view of the matter, we do not find any merit in Criminal Appeal No. 833 of 2006 filed by the State of Rajasthan against accused A-2, A-4 and A-5 challenging the order of acquittal recorded in their favour. 53.For the forgoing reasons, Criminal appeal No. 757 of 2004 filed by accused A-1 succeeds in part and accordingly it is partly allowed. As a consequence thereof, we alter conviction recorded against accused A-1 for the offence under Sec.302 to Sec.304 Part I and for that he is sentenced to rigorous imprisonment 23 for 7 years and fine of Rs.1,000 and in default of payment of fine to further undergo six months' simple imprisonment.