1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR **** :JUDGMENT: Litta Singh & Anr. Vs. State of Rajasthan **** D.B. CR. APPEAL NO.239/2002 AGAISNT THE JUDGMENT AND ORDER DATED 23.1.2002 PASSED BY SHRI J.S. YADAV, RHJS, ADDL. SESSIONS JUDGE NO.1, SRI GANGANAGAR IN SESSIONS CASE NO.16/2001 <><><> Date of Order : 8th May, 2008 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE BHANWAROO KHAN Mr.RS Gill, for the appellants. Mr.JPS Choudhary, Public Prosecutor. BY THE COURT: (Per Hon'ble Mr. Justice Prakash Tatia) This appeal has been preferred by the accused- appellants Litta Singh and Kala Singh both sons of Boga Singh against the judgment and order dated 23.1.2002 passed by the learned Sessions Judge No.1, Sri Ganganagar in Sessions Case No.16/2001 whereby the appellants have been convicted under 2 Section 302/34 IPC and have been sentenced to undergo life imprisonment and both have been fined with the fine of Rs.1,000/- each in default thereof to further undergo one month's rigorous imprisonment. By the same judgment, the co-accused Boga Singh has been acquitted from the said charge. As per the prosecution case, complainant Baltej Singh PW-1 submitted a written report on 7.2.2001 Ex.P/1 in the police station Sadulshahar upon which FIR Ex.P/17 was drawn and a case under Section 307, 341, 323/34 IPC was registered. It is alleged in the said report Ex.P/1 that to pass time, the villagers and complainant (and his family members) used to sit near the fire (in the time of winter and cold) in front of house of Mukund Singh. Boga Singh co-accused was not liking sitting of brother of complaintant, Hansraj Singh and, therefore, two days before the date of incident quarrel took place between Hansraj Singh and Boga Singh. On 7.2.2001 at about 7.00 PM hearing the voice “Kill-Kill” coming from the side of lane of one Mukund Singh complainant, Yadvinder Singh, Mukund Singh and Gurjant Singh ran towards 3 the place from where the voice was coming. There they saw that accused Boga Singh and his two sons Kala Singh and Litta Singh were beating Hansraj Singh with Lathis and Gandasi. Kala Singh had Gandasi with him who inflicted injury by Gandasi on the head of his brother Hansraj Singh and others gave beating by Lathis. The complainant, Mukund Singh, Yadvinder Singh and Gurjant Singh shouted upon which the accused ran away. The complainant took the victim to the hospital and got him admitted and came to lodge report Ex.P/1 in the police station Sadurlsahar at 10.00 PM. On the basis of this report Ex.P/1 FIR No.29/2001 Ex.P/15 was registered and investigation was conducted. During investigation site was inspected on next day, i.e., on 8.2.2001 and reports were prepared then blood soil and sample soil were collected and taken in possession and memos Ex.P/3 and P/4 were prepared, all the three accused were arrested and arrest memos Ex.P/18, P/19 and Ex.P/22 were prepared. In furtherance to the information given by the accused under Section 27 of the Evidence Act, the weapons of 4 offence were recovered and recovery memos Ex.P/8, P/20, P/21 and P/22 were prepared. The seized articles “blood soil” “plain soil”, deceased shirt, Lathi and Gandasi were sent to the FSL for report and after recording the statements of the witnesses and obtaining opinion of the FSL report Ex.P/24 and Post- mortem report Ex.P/14, the challan was filed against the accused persons under Section 302/34 IPC. The accused denied the charges and sought trial. The prosecution produced as many as 9 witnesses out of whom PW-1 Baljet Singh, PW-2 Yadvendir Singh and PW-3 Mukund Singh are eye witnesses. PW-4 Sewa Singh is the witnesses of the recovery. The other witnesses to prove the seizure of the articles and sending them to the FSL were also produced in the trial court. The accused were examined under Section 313 Cr.P.C., who stated that they have been wrongly implicated in the case. The accused Boga Singh took further stand that deceased Hansraj Singh had illicit relation with wife of Gurjant Singh and it was objected by him and, therefore, he has been wrongly implicated 5 in the case of murder. The accused Kala Singh and Litta Singh merely denied the prosecution allegations. All the three accused did not produce any defence evidence. The trial court after hearing the arguments and considering the evidence convicted the appellant Kala Singh and Litta Singh under Section 320/34 IPC and sentenced them to undergo life imprisonment and fine of Rs. 1,000/- each. However, the co-accused Boga Singh was acquitted by the trial court, hence, this appeal by the above two appellants. Learned counsel for the appellants vehemently submitted that firstly the reason given for the dispute clearly shows that because of that reason no one can kill anybody. The only reason given for killing Hansraj Singh is that there was some quarrel for sitting near the fire in the time of cold. Because of that reason, it is not possible that Boga Singh and his two sons would have planed to kill the victim Hansraj Singh. It is also submitted that in fact the witnesses PW-1 Baljet Singh, PW-2 Yadvendir Singh and PW-3 Mukund Singh were not the eye witnesses and the trial court 6 also held that they could not have seen the beating of Hansraj Singh from the place near their houses as stated by them in their evidence. As per the prosecution case, the dispute was between Hansraj Singh and Boga Singh and Boga Singh has been acquitted by the trial court, therefore, it is clear that the complainant has falsely implicated the innocent person in the case of murder. Further, looking to the antecedents of the above three witnesses and their false statement no reliance can be placed on their evidence. It is also submitted that the witness Yadvinder Singh was not in the village on the date of incident. The complainant witness Baljet Singh is the real brother of the deceased and Mukund Singh had previous enmity with Boga Singh. Therefore, all gave absolutely false statement in the court. It is also submitted that the eye witnesses stated that Kala Singh inflicted injury by Gansadi on the head of the deceased Hansraj Singh whereas as per the medical report, there was no injury on the head of the deceased from Gandasi. This also suggest that the witnesses did not saw the incident. According to 7 learned counsel for the appellant, Gurjant Singh, alleged eye witness was not produced by the prosecution because he must have refused to support the false case of the prosecution. It is also submitted that the FIR was sent to the court after delay and that is fatal in the facts of the case. It is also submitted that not only that the prosecution failed to show any motive for killing Hansraj by the appellants, but the trial court rejected the very foundation of story of prosecution that Hansraj Singh and Boga Singh had dispute between them and, therefore, Hansraj Singh was killed by accused including Boga Singh. Therefore, conviction of appellants cannot be sustained. Learned counsel for the appellants with the help of the judgment of the Hon'ble Supreme Court delivered in the case of Sellappan VS. State of Tamil Nadu reported in 2007 Cr. L.J. 1442 submitted that in the identical facts and circumstances the accused were acquitted from the charge under Section 302 IPC by the Hon'ble Supreme Court, however, accused were convicted under Section 304 Part II IPC. In the case of Tarsem Singh & Ors Vs. State of Punjab 8 reported in 2002 Cr. LR (SC) 278 where there was injury of incised wound of 3x1/2x1/4 inches on the right side of the scalp just above the left ear which caused the fracture of left parietal and left temporal bone extending to the frontal and occipital reason, the conviction of the accused under Section 304 part II IPC was upheld by the Hon'ble Supreme Court. Learned counsel for the appellant also relied upon the judgment of the Hon'ble Supreme court delivered in the case of Suresh Singh & Anr. Vs. State of Harayana reported in 2007 Cr. L.J. 4717 and submitted that when injuries were caused from blunt side of the sharp edged weapon on non-vital part of the body, the Hon'ble Supreme Court held that it cannot be said that appellant intended to cause death for such injuries as were sufficient in the ordinary cause of nature to cause death and in that situation only it can be attributed to the accused that the accused had knowledge that the injuries inflicted by them were likely to cause death of the victim and, thereafter, maintained the conviction of the accused under Section 304 Part II IPC. 9 Learned counsel for the appellants further submitted that as per prosecution the incident took place at about quarter to seven and in the month of February the sun-sat time was 6.30 PM and, therefore, the said eye witnesses could not have seen the assailants who might have inflicted the injury on the victim. In support of this, learned counsel for the appellants relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Moti & Ors Vs. State of UP reported in 2003 SCC (Cri) 1821. Learned Public Prosecutor supported the judgment of the trial court and stated that in view of the direct evidence of three witnesses and in view of the evidence brought on record by the prosecution, it is clear that the appellants had formed a common intention to eliminate the victim Hansraj Singh and given effect to their this intention by inflicting 10 injuries upon the victim, which includes the incised wounds on vital part of the body of the deceased. The cause of death of deceased has been the injuries and the injuries were sufficient to cause death in ordinary course as per the medical evidence in this case. In 10 view of th above, the appellants cannot be acquitted on the basis of some assumption or even on the basis of over effort of witnesses to see that accused be punished for his crime. We considered the submissions of learned counsel for the parties and perused the record. It appears that three witnesses PW-1 Baljet Singh, PW-2 Yadvinder Singh and PW-3 Mukund Singh are eye witnesses and they supported the prosecution case. Their reaching to the place of incident on hearing the shouting from the place of incident appears to be natural as they are residents of the area where incident happened. The witnesses may be closest relatives but on this count alone, their testimony cannot be discarded. The close relation with the victim may be reason for telling truth because of the reason that the close relatives may not like to save the real accused, who has killed their nearest relative. There may be possibility that in the effort of getting punishment for guilty person some innocent person with whom relatives may have enmity 11 may also be implicated but leaving the guilty person altogether and including other person who has not committed crime is ordinarily cannot be accepted. Minor discrepancies in the statement of the witnesses are not sufficient to discard their statement with respect to the material facts. The Hon'ble Supreme Court in the case delivered in Noratam Singh VS. State of Punjab & anr reported in AIR 1978 SC 1542 observed as under : - “Discrepancies do not necessarily demolish testimony; delay does not necessarily spell unveracity and tortured technicalities do not necessarily upset conviction when the Court has had a perspicacious, sensitive and correctly oriented view of the evidence and probabilities to reach the conclusion it did. Proof of guilt is sustained despite little infirmities, tossing peccadilloes and peripheral probative shortfalls. The 'sacred cows' of shadowy doubts and marginal mistakes, processual or other, cannot deter the Court from punishing crime where it has been sensibly and substantially brought home.......” The witnesses' saying that they saw the beating from their houses if has not been believed by the trial 12 court, it has not effected the truthfulness in the evidence of witnesses PW-1 Baljet Singh, PW-2 Yadvendir Singh and PW-3 Mukund Singh that after hearing the voice coming from the site where the incident occurred, the witnesses ran towards the place of incident and found the accused persons beating the victim. Thus the relevant fact is that incident occurred at about quarter to 7.00 PM i.e., in the evening of 7.2.2001 and FIR was lodged within a short period of three hours, i.e., at about 10.00 PM. The FIR was lodged by PW-1 Baljet Singh @ Tej Singh, the eye witness himself, therefore, his presence at the relevant time finds support from the promptness by which the FIR was lodged. The FIR was sent to the court in the next morning i.e., 8.2.2001 and was reached to the court before 10.50 AM. Therefore, it is improper to think that the FIR was lodged after concocting story to implicate the accused persons. So far as cause for committing murder by by the appellants is concerned, it is settled law that it is generally impossible task for the prosecution to prove what precisely/exactly would have been the real cause 13 for the act of the accused for committing the heinous offence of murder. It may be because of the reason that there cannot be direct evidence about the possible mental element of the person who has caused the murder. If there is a direct trustworthy evidence of causing murder by the accused then the accused cannot be acquitted on the ground that precise and exact cause has not been proved by the prosecution. In this case, there is evidence of dispute between the two parties and, therefore, the prosecution case cannot be thrown out only on the ground that the prosecution failed to prove the real cause for the murder. The offence of weapon – Gandasi was recovered from the appellant Kala Singh, which had blood over it and as per the FSL report Ex.P/24 that blood was of human being. The Lathi was recovered from Boga Singh and that also had blood over it and said blood was of human being as per the FSL report Ex.P/24. The witnesses PW-6 Dr. B.B. Gupta proved the post mortem report and opined that the injury no. 7 and 8 inflicted on the head of the victim were sufficient to 14 cause death in the ordinary course. The oral evidence of PW-1 Baljet Singh, PW-2 Yadvinder Singh and PW-3 Mukund Singh corroborates the said medical evidence and the said medical evidence corroborates the ocular statement of the three eye witnesses. In view of the above evidence and further reason that the appellants and the witnesses were known to each other and there was sufficient light in which the accused could have been identified, we do not find it a case where the accused could not have been identified as assailants by the witnesses. Therefore, we are in full agreement with the finding of the trial court that injuries were caused to the victim at the time and at the place as given by the prosecution and those injuries were caused by these two appellants. Learned counsel for the appellants in alternative submitted that there was no common intention of the appellants and further there was no intention of the appellants to kill the victim. According to learned counsel for the appellants it may be possible that because of some dispute and quarrel between the appellants and victim, the appellants might have tried 15 to teach lesson to the victim and in that they may have inflicted injuries, which may have caused the death of the victim, but there could not have been any intention of the appellants to kill the victim. In view of the above reasons, the conviction of the appellants may be altered from Section 302 IPC to Section 304 Part II IPC or at the most under Section 304 Part I IPC. From the facts it is proved that it was not a sudden fight in which the accused might have inflicted injuries upon the victim and some injuries went wrong and hard upon the victim and due to that victim might have died. It is a case where two accused with common intention attacked upon the victim by Gandasi and Lathi and caused 10 injures out of which injury no. 1 and 2 are incised wounds, which are on the arm of the victim, but injury no.7 and 8 are on vital part of the body of the deceased with injury no.9 also on the head of the deceased. These injuries could have not been inflicted for teaching the lesson to the enemy. The intention of the appellants to eliminate the victim is proved by the oral and trustworthy 16 evidence as well as from the nature of injuries. Therefore, in the facts of the case, the appellants' conviction cannot be reduced to lessor than punishable under Section 302 IPC. In view of the above reasons, the appeal of the appellants is dismissed. The accused Litta Singh was enlarged on bail vide order dated 1st Sept., 2005 whereas the accused Kala Singh is serving sentence. The trial court is directed to secure the arrest of Litta Singh for serving out the remaining sentence and bail bonds of the appellant Litta Singh are cancelled. The accused appellant Kala Singh is behind the bar. He shall serve out the remaining part of the sentence. [BHANWAROO KHAN], J. [PRAKASH TATIA],J. c.p.goyal/-