1 D. B. Criminal Appeal No.1163/2004 Sardara and Others v. The State of Rajasthan IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T SARDARA & OTHERS. V. THE STATE OF RAJASTHAN. D. B. CRIMINAL APPEAL NO. 1163/2004 against the judgment dated 20.11.2004 passed by Shri Ajay Kumar Ozha, RHJS, Additional Sessions Judge (Fast Track) No.1, Pali, Camp – Jaitaran in Sessions Case No.95/03. DATE OF JUDGMENT 25/05/2010 PRESENT. HON'BLE MR. JUSTICE GOVIND MATHUR HON'BLE MR. JUSTICE C. M. TOTLA Mr. R.S.Charan, for Appellant (s). Mr.K.R.Bishnoi, PP, for the State. BY THE COURT: (PER HON'BLE TOTLA, J.) Appellants are convicted and sentenced as under – (A) appellant Sardara, son of Harman (i) for S.302 IPC – life imprisonment plus fine Rs.2,000/-, in default - six months rigorous imprisonment, (ii) S.394 IPC – seven years rigorous imprisonment plus fine Rs.1,000/-, in default – three months rigorous imprisonment, (iii) S. 25 Arms Act – three years rigorous 2 D. B. Criminal Appeal No.1163/2004 Sardara and Others v. The State of Rajasthan imprisonment plus fine Rs.500/-, in default – two months' rigorous imprisonment, (B) appellant Chhotu @ Chhotiya, son of Prabhulal, (i) for S.302 read with S.34 IPC – life imprisonment plus fine Rs.2,000/-, in default – six months rigorous imprisonment, (ii) S.394 IPC – seven years' rigorous imprisonment plus fine Rs.1,000/-, in default – three months rigorous imprisonment, (C) appellant Harman @ Urariya, son of Uda @ Udaram, (i) S. 302 read with S.34 IPC - life imprisonment plus Rs.2,000/- fine, (ii) S.25 Arms Act – three years rigorous imprisonment plus Rs.500/- - in default two months rigorous imprisonment. The appeal challenges above convictions and sentences. Alleged incident and sequence of events, according to prosecution, are that on 27.08.2002, at about 4.30 afternoon, someone not disclosing his name, informed on phone to police station, Jaitaran – that at “gochar” (pasture) land of village Talkiya, someone from bushes, fired and due to bullet injury, a person is dead. SHO PW 5, making entry at roznamcha entry No.1166, proceeded to place of occurrence, where at 6.30 p.m., Nemaram PW 12 told and informed him that he, Ratna Ram, Pancha Ram, Sohan and Chimna for grazing their cattle, starting ten days ago from village, on that day 27.8.02 arrived at this pasture land of village Talkiya, where three Harman, his son Sardara and son-in-law Chhotiya with guns in their hands, came from behind bushes and told him as to why herd at “gochar”, so Nemaram PW 12 replied of taking away herd but these persons not conceding and threatening of not letting take herd, 3 D. B. Criminal Appeal No.1163/2004 Sardara and Others v. The State of Rajasthan demanded money for liquor and when PW 12 declined, Sardara, snatched Rs.500/- from his pocket and all pushed him down, so PW 5, shoutingly called and runningly came there Ratan Lal and Sohan (PW 4) who, coming to know of the incident, when objected for it appellant Chhotiya slapped Ratan Lal and when PW 5 and Sohan intervened, all three gunned towards them, and Sardara fired on Ratna Ram who sustaining injury and pellets at chest, fell and died. Then PW 12, for protecting themselves, gave a blow of lathi at hand of Chhotiya, so his gun fell down which lying there and these persons went away, on shouts, Paras (PW 13) also came to whom they asked to go police station. PW 5, recording this statement of PW 12 as Ex.P4, making own endorsement, sending it with a constable to police station for registration of case, and commencing investigation (i) inspecting place of occurrence, prepared memo and site plan Ex.P5- prepared memos Ex.P7 and Ex.P8 of the state of dead body and injuries, (ii) seized and sealed there found a pair of shoes (“jooti”) and “saafa” (turban), a ML gun and also a small piece of some gun preparing memo Ex.P6, (iii) collected and sealed sample of spread blood and also plain soil which was at place of occurrence. (iv) sealed, blood stained worn shirt, baniyan and dhoti of deceased. Post mortem performed by Dr. PW 1 on August 28th at 8.30 A.M. and report Ex.P1 prepared. Injuries of Nemaram examined and report Ex.P2 prepared by Doctor PW 1 in evening of 27.8.02. Appellants Sardara and Chhotiya arrested on same day respectively 4 D. B. Criminal Appeal No.1163/2004 Sardara and Others v. The State of Rajasthan at 11.00 p.m. and 11.10 p.m. and investigating officer PW 5, per disclosure and information of appellant Sardara recorded as Ex.P21, at instance of Sardara on 28.8.02, recovered from his hut-from below a camel pilan (seat used for camel ride) over which were cotton mattresses, - ML gun-of which was broken away was a small wooden portion of upper part this recovered gun seized and packet marked as “7” - prepared recovery memo and site of place are Ex.P22 and Ex.P23. Obtained information about Sardara and Harmana, of not having firearm licence and prosecution sanction Ex.P34 and 35. Appellant accused Harmana was arrested on July 31st, 03 and ML gun held by him at that time, was seized and sealed, preparing memo Ex.P36. Packets of different articles seized and recovered, were delivered at FSL and examination reports received are Exs.P35 and P39. Appellants claiming trial, prosecution examined 14 witnesses. Appellant Harmana was subsequently arrested, therefore, first four witnesses also examined afresh. Among the prosecution witnesses, PW 12 is first informer injured eye witness and PWs 2, 3, 4 and 13 are who soon reached at the place of occurrence and accordingly are eye witnesses. PW 1 medical officer performed autopsy and also examined injuries of PW 12 who proves reports Exs. P1 and P3. PW 5 SHO, receiving information, arriving at the scene of occurrence, investigated and PW 7 is one of the independent witnesses of place of occurrence and recoveries etc. Gordhan Singh PW 5 D. B. Criminal Appeal No.1163/2004 Sardara and Others v. The State of Rajasthan 11 depose regarding appellant residing and being there for watching the agriculture fields. PW 14 Sub-Inspector arrested appellant Harmana and seized the gun found in his possession. PWs 6, 8, 9 and 10 relate to safe keeping and delivering packets at FSL. Appellants assert that they neither indulge in such activity, nor committed alleged act and that deceased Ratna Ram and his colleagues, having consumed liquor, were quarreling each other, during which gun shot by any one of them struck Ratna Ram who died. In defence, examined is wife of appellant Sardara Ram DW 1 who states that their “dera” (temporary residential establishment) was at pasture land and deceased Ratna with Nema, having consumed liquor, came at her “dera” and threatening them, asked for money and rabbit (meat) and also desired to live with them who, despite request of appellants Sardara and Chhotu, did not relent and then when deceased asked PW 12 to return abut PW 12 refused to return and deceased gave Nema a blow of lathi, then Ratna called appellant Sohaniya who had a gun and as Nema gave a blow of lathi at gun it fired and Rataniya killed. Learned Judge arriving at conclusions leading to above punishable offences, convicted and sentenced appellants. Learned counsel taking us to the deposition of witnesses and said appearing facts and circumstances, contends that appellant, PW 12 and deceased threatening appellants, entered agriculture fields and crop watched by appellants so some heated exchanges occurred-none of the 6 D. B. Criminal Appeal No.1163/2004 Sardara and Others v. The State of Rajasthan appellants had any reason to commit such an act and it was deceased and PW 12 who came there – PWs 2, 3 and appellant and also PW 13 could, in no way, have witnessed the incident and their statements are quite contrary to what they stated in course of investigation and there narration is opposite to each other. Submits that first information report per deposition of witness, was lodged by Paras PW 3, whereas investigation claims information by some unknown and then recording of first information report on statement of Nemaram, thus, the very first version is not disclosed or at least every probability of having not been put in materially distorted different way. Emphasizing parts of evidence, argued that for incident contrary to each other is evidence of witnesses and that complainant broadly was stranger intruding into agricultural field. Regarding recovery, submitted that no rational after causing injury by a fire arm, shall leave weapon or part of the weapon at the place and further, no evidence for establishing found piece to be of the gun recovered. For appellant, Chhotiya, also submitted that keeping such an article at the time of arrest is hardly believable in absence of definite independent witness. Thrustly submitted that in any case, injury causing death, is attributed to appellant Sardara and the incident occurred after heated exchange and quarrel, so no intention of causing death or for such injury is inferable and the act at most for Sardara alone constitutes one under Section 304 Part II IPC. Learned Public Prosecutor, controverting above arguments, 7 D. B. Criminal Appeal No.1163/2004 Sardara and Others v. The State of Rajasthan submitted that giving threat, demanding money and snatching Rs.500/-, fire arm bullet injury caused so every appellant is rightly convicted. Submits that gun too is recovered. Thoughtfully considering arguments, we have gone through the record, evidence produced, impugned judgment and also memo of appeal. Post-mortem was performed by Doctor PW 1 the then medical officer, Government health centre, Jaitaran who proving report Ex.P1, depose that he conducted examination at 8.30 a.m. on 28.8,.02 and deceased Ratna had external injuries (i) 2 to 4 punctured wound at right of chest, (ii) about 14 punctured wounds with fracture of ulna right hand, (iii) incised wound with humerous bone fracture on right arm – 1” x ½ “x 1/2”. On opening body, found (a) above fractures of right arm and ulna and fractures of 3rd, 4th, 5th & 6th ribs, (b) multiple punctured wound with pellets in at right side of chest upto and in lungs with plenty of blood in lungs and death within preceding day as a result of haemotoma caused by gun shot injury and pellets. Other ocular evidence also disclose death in after noon following gun fire. Thus, stands proved that Ratna Ram died in the afternoon of 27.8.02at about 4-5 p.m. Per testimony of Doctor PW 1 and other is proved that Nema Ram PW 12 also sustained injury – bruise 2 x 2” at right thigh with complaint of pain at leg and right wrist. Appellant Chhotu was arrested on 27.8.02 at 11.00 p.m. and memo 8 D. B. Criminal Appeal No.1163/2004 Sardara and Others v. The State of Rajasthan Ex.P19 finds mention that he had injuries – (a) at left thumb with lacerated wound like and bleeding and also signs of injury on four fingers, (b) swelling on right arm and bluish signs on left arm and left thigh. Similarly, arrest memo Ex.P20 of appellant Sardara mentions of (i) swelling on right forearm, (ii) signs of injuries on left arm left scapula and left thigh. SHO PW 5 admits that appellants, when arrested, had injuries which were examined by the medical officer. Complainant PW 12, deceased Ratna, PWs 2, 3 and also PW 4 belonged to village Garniya and this incident occurred at village Talkiya. Pancha Ram PW 3 states that distance from Ganriya to Talkiya is about 10 miles, i.e. 16 kms. PW 12 states, as also is mentioned in FIR Ex.P4, that he, Ratna, Pancha Ram, Sohan and Chimna Ram, all with cattle herds started ten days ago. Sohan Lal PW 4 tells that on the day of incident, they arrived at village Garniya. PW 3 says that only on the very same day, they departed from their village Garniya and arrived at this village Talkiya. As against it, PW 2, PW 4 and PW 12 say that they were out from their village since last ten days. These witnesses do say that on hearing loud crying voice of Nema PW 12, they soon reached. Nemaram PW 12 deposed that on his loud calling runningly instantly on occurrence came Paras Ram and who went to police station for reporting and then police personnels came and inquired (taking of statement) from him. Chimna Ram PW 2, Pancha Ram PW 3 and Sohan PW 4 also say that Paras went to police station Jaitaran for reporting. 9 D. B. Criminal Appeal No.1163/2004 Sardara and Others v. The State of Rajasthan According to Paras PW 13, leaving Nema and Sohan and others there with body of Ratna, he came to police station, reported and also lodged a complaint in writing. As against it, SHO PW 5 depose of someone not disclosing his identity, informing on phone. According to roznamcha entry Ex.P3 also, information of gun fire resulting in death of one was received on phone. Looking to this contrary evidence, becomes little doubtful if only on spot and the statement of PW 12, was the first information. However, also is that any casual or wholly incomplete information in uncertain terms cannot always constitute first information. However, here we need not delve with this question any more because as will be observed assuming statement Ex.P4 of PW 12 to be affected by provisions of S.162 Cr.P.C., still do not make any worth difference in the instant case. Gordhan Singh PW 11 deposed that he is resident of this village and near his agriculture land, residing were appellants who were asked and used to watch, with wooden rule in their hands, his (PW 11's) agriculture field. PW 2 and PW 12 state that appellants, living nearby used to watch fields. PW 3 and others also tell somewhat similar. Gun is recovered from house of Sardara next day and appellants are named right from beginning. Therefore, established is that appellants were residing in near vicinity who used to keep watch of fields. It is also to be noted that incident occurred at pasture land. PW 12 states that when he, PWs 2, 3, 4 and 5 all scatterly but in same area, were grazing their cattle at pasture 10 D. B. Criminal Appeal No.1163/2004 Sardara and Others v. The State of Rajasthan land meant for grazing of cattle of every came out of the bushes all three appellants and asked him for money and when he declined, they did hold him and Sardara, forcely snatched Rs.500/- from his pocket and also taking his turban, pushed him down. On his loud shouting, runningly came Ratna Ram and Sohan and as Ratna Ram spoke of place being pasture land and that they not damaging any crops, Chhotiya slapped Ratna and Sardara pointing gun at Ratna Ram fired who getting injuries at chest and hand, fell down then and there. PW 2 further state that appellant Chhotiya also had gun, but he (the witness) intervening by “gedi” (wooden rule), made gun fell down and then all three (appellants) ran away leaving gun there. According to PW 12, then on his loud calling, came Paras Ram who observing Ratna Ram dead, went to police station. PW 12 says that on that place, grazing they were first time and no quarrel occurred prior to snatching of money, and police personnel came and recorded his statement. Learned counsel vehemently argued that PW 12 first deposed of firing by Harmana and only after some more deposition, spoke of firing by Sardara and not Harmana, clearly disclose and show that no such incident occurred and PW 12 neither see any such incident nor Ratna sustain injury in presence of PW 12. Argues that PW 12 not knowing of who and when fired and after consultation with others but purely on surmises and impressions narrated the incident and such firing as alleged becomes highly doubtful. 11 D. B. Criminal Appeal No.1163/2004 Sardara and Others v. The State of Rajasthan In our considered opinion, the argument, can in no way, be sustainable, because deposing after about two years of the incident due to casual innocent error, inadvertence, slip of tongue or even in some cases, some slip of memory momentaly not perfect name can be uttered but when cleared soon after and otherwise nothing to question version and veracity or controverting, then, a casual wrong mentioning of name cannot adversely affect testimony and prosecution. Moreso when on the point witnesses more than one and consistent are. Broadly, every deposition is to be taken as a whole and in context of deposition is about what, in what context, what sequence and in what background and by whom. Not is that straw words or line are to be taken alone or in isolation and then non-harmonious interpretation and meaning is to be taken but the evidence is to be analyzed and evaluated as a whole in proper perspective. In fact, in such matters, considering entire context and also subject, the evidence is to be examined, analyzed and evaluated and then the inference which may depend upon various other elements g which may come to fore. Sohan Lal PW 4 depose that they all were with their herds at distance sof 100-200 paces and hearing crying voices of Nema he (PW 4) and others, went there and Nemaram told of beating and snatching Rs.500/-, then Chhotu slapped Ratna and Sardara fired and Ratna Ram injured at chest and hand, fell down. Pancha Ram PW 3 states that Nema struck a lathi at appellant Chhotu, so gun from his hand fell down and all 12 D. B. Criminal Appeal No.1163/2004 Sardara and Others v. The State of Rajasthan three ran away. Chimna PW 2 says that by time he hearing cries, reached, Ratna was dead and soon also came Paras. In investigational statements Ex.D2 and Ex.D3 of Chimna Ram PW 2 and Pancha PW 3 appears that they came to know of the incident at 7.00 p.m. when crowd gathered and when PW 2 and PW 3 confronted of this, they denying assert having seen the occurrence. Given the deposition of PW 12 and above it cannot be definite that PWs 2 and 3 arrived and did view the incident. However, this does not affect other evidence. PW 12, PW 2 and also Paras PW 13 say that Paras came but soon after firing and felling of Ratna. Sohan Lal PW 4, depose of his reaching there, and spontaneous narration by Nemaram of beating and snatching Rs.500/- from him and then slapping by Chhotu to Ratna and fire by Sardara. Per PW 2, by the time, Paras followed by Sohan and Pancha arrived, Ratna was dead. No reason appears to doubt any portion of deposition of PW 2. As is observed, according to all witnesses, Paras came after succumbing of Ratna Ram and Paras PW 13 also states e that he went running and by the time, he reached, Ratna fell down who had sustained bullet injury at chest. PW 13 also states that Nema struck lathi at hand of Chhotu so gun fell down and then these persons ran away. When PW 13 reached soon and instantly after Ratna sustained injury, therefore, obviously, he could not have observed any earlier incident. Paras PW 13 states time to be at 4.30 p.m. 13 D. B. Criminal Appeal No.1163/2004 Sardara and Others v. The State of Rajasthan As above firmly is established that Chhotu slapped Ratna and then Sardara in presence of two other appellants fired at Ratna. SHO PW 5 depose that at the scene of occurrence, lying there was a turban (“safa”) a gun and a piece of gun which all seized preparing memo Ex.P6. PW 5 states that appellant Sardara was arrested on same day vide memo Ex.P26 who informed him of gun being in his “dera”, the information was recorded as Ex.P21 and then appellant Sardara from in side his house, taking from below a “pilan” (seat for camel riding) handed over a gun which seized and sealed, making memo Ex.P22 and also that when appellant Sardara arrested on 27.8.02, in his possession, was some gun powder and sulpher which too was seized, mentioning in memo of arrest Ex.P20. Gun art.1, safa art.2, jooti art.3, piece of gun art.5 and gun art.6 are identified by him. One of two “motbirs” of these proceedings, Ganpat Singh PW 7 supports this recovery. Therefore, stands established also is that in house of Sardara and to his knowledge, in forenoon of 28.8.02 was and recovered this gun art.6. Evidence produced proves depositing of sealed packets of recovered at FSL on 17.10.02. On examination muzzle gun recovered on information and at instance of Sardara, was found serviceable and also indications that broken pieces related to this gun – FSL report is Ex.P39. Incident is of August 27, 2002, Sub-Inspector PW 14 state that appellant Harmana was arrested on 31.7.03 and, at that time of arrest, appellant possessed ML gun which recovered, preparing memos Ex.P36 14 D. B. Criminal Appeal No.1163/2004 Sardara and Others v. The State of Rajasthan and 37 and that gun is Art.4. Harmana was arrested at 8.00 a.m.on 31.7.03 that is about after a year. As no other evidence for the recovery and in absence of any other specified reason and circumstances, recovery of gun from possession of Harmana cannot be taken to be proved. In defence, deposition is of wife of Sardara. This incident occurred at about 4 O'clock in afternoon. DW 1 state that Nema and Ratna came drunk and demanded money and meat, who did not relent, even on asking of Sardara and Chhotiya and then when Nema PW 12 refused to return as asked by Ratna called was Sohaniya PW 4 whose gun went off when PW 12 struck gedi. Defence version and evidence of wife of Sardara DW 1 is not worth acceptance. According to her, two persons came and at home, in addition to her also, were Sardara and Chhotu. Moreover, when this incident occurred in broad day hours and matter reported to police at 5 or 5.30 p.m., no part of statement DW 1 can be believed. As discussed above, arising definite inferences are that PW 12 and others, arriving village Talkiya, were grazing their cattle at village pasture land – PW 12 Nema Ram being alone, appellants three who there watching fields, came to him and objecting for grazing, asked PW 12 for some money – hot exchange of words followed with all three appellants and Sardara coercing snatched Rs.500/- from PW 12-PW 12 loudly called and arrived there deceased Ratna Ram and Sohan Lal PW 4-intense brawl occurred between appellants and then – appellant Sardara, pointing his 15 D. B. Criminal Appeal No.1163/2004 Sardara and Others v. The State of Rajasthan gun towards Ratna, fired and Ratna, sustaining injuries, fell down there - Paras PW 13 also arrived - the incident occurred at pasture land and appellants though watching fields knew it well. Appellants Sardara and Chhotu also injured and PW 12 sustained 2 x 2” bruise at rt. thigh. As is established, deceased, in addition to bullet injury, also sustained a incised wound 1” x ½ “x 1/2” at right hand – this injury was not of fire arm. Not is attributed causing of any injury after gun shot, therefore, follows that in all probabilities preceding gun shot, quarrel and beating occurred between them. Appellants were three and on other side were also PW 12, deceased and at least Sohan Lal. Had there been any intention of causing death or even injury - on part other than who actually inflicted injury and fired - nothing was to prevent overt act by others right from point amount asked to fire. Prior to bullet shot, appellants and deceased also sustained above injuries – all these lead to conclusion that appellants not intended above on commonly to cause death or cause such injury to cause death. In the circumstances, responsibility and consequences of causing fire