1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Labh Singh Vs. State of Rajasthan D.B.CRIMINAL APPEAL NO.2/1984 against the judgment dt.15.12.1983 passed by the learned Addl.Sessions Judge, Sri Ganganagar, in Sessions Case No.3/1983. Date of Judgment: 5th May, 2009 P R E S E N T HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.M.D.Purohit, Sr.Advocate,assisted by Mr.Devendra Godara, for appellant. Mr.S.S.Sharma, Public Prosecutor. Mr.S.G.Ojha, for complainant. BY THE COURT : (PER THANVI J.) 1. Appellant Labh Singh, who has been convicted of the offence under Section 302 IPC and sentenced to undergo imprisonment for life alongwith a fine of Rs.100/- and in default, to further undergo 30 days' 2 S.I. by the learned Addl.Sessions Judge, Sri Ganganagar on 15.12.1983, has filed this appeal against the conviction & sentence. 2. Facts leading to this appeal are that on 3.8.1982, Prakash Chand, ASI, Police Station Kotwali, Sri Ganganagar, received a telephonic message from the Medical Jurist, Govt. Hospital, Ganganagar that the dead body of Ram Singh is lying in the mortuary of the hospital and injured Sultan Singh has been admitted in the hospital. Upon this, Prakash Chand, ASI reached at the hospital and recorded the statement of injured Sultan Singh in which he told that one `Kotha' is located at the boundary of his `dhani' and a dispute is going on about its possession with Kalwant Singh, Labh Singh, Baldev Singh and Nahar Singh. There is also dispute of accused Labh Singh with Ganga Ram Bawri and he is a witness in it. On account of this, they came from the court by giving evidence on the preceding day and came back in the night at 9.30 PM. His uncle Ram Singh made a cry “bachao – bachao”. He went towards him, where he saw that Kalwant Singh, Labh Singh, Baldev Singh and Harnek Singh surrounded Ram Singh. Kalwant Singh and Baldev Singh were having pistols in 3 their hands, Labh Singh was having `Sela' and Harnek Singh was having `Kasiya'. Kalwant Singh and Balwant Singh told that enemy is alone and, therefore, he be killed. Both of them fired. Labh Singh who was having `Sela' in his hand, inflicted blow on Ram Singh in his abdomen. When he tried to rescue Ram Singh, he was surrounded by Sultan, Hukum Singh, Chetan and Sukh Ram. Sultan inflicted `Sela' blow and Hukum Singh fired. He received injuries on his arm. Saheb Ram, Kishore Singh and Jai Singh came on the spot and on seeing them, the accused ran away. Kishore Singh and Saheb Ram took them to the hospital and Ram Singh died on the way. The incident took place near the house of Badri Ram. Upon this report, the police registered a case against the accused under sections 302, 307, 147, 148 and 149 IPC and Sec.27 of the Arms Act. The investigation was commenced. The recoveries of `Sela' and `pistols' were made. The site plan was prepared and after investigation, eight accused including the present appellant Labh Singh were chargesheeted in the court of the learned Judicial Magistrate, who committed the case to the Court of Sessions. After hearing the arguments on charge, the learned Addl.Sessions Judge framed charges against the accused Labh Singh under 4 ss.147, 148, 149, 302, 324 and 324 read with 149 IPC. Rest of the seven accused were also chargesheeted u/ss.147, 148, 324 read with 149, 302 read with 149 and Sec.27, Arms Act. The accused pleaded not guilty and claimed trial. The prosecution examined 13 witnesses. The statements of the accused were recorded under Section 313 CrPC. They led no defence. Except accused appellant Labh Singh, rest of the accused were acquitted but accused Labh Singh was convicted and sentenced as above. 3. We have heard learned counsel for the appellant and the learned Public Prosecutor as well as the learned counsel for complainant and carefully gone through the record of the case. 4. While assailing the judgment of the learned trial Judge, it has been contended by the learned counsel for the appellant Mr.M.D.Purohit, Sr.Advocate, that the story of the prosecution is totally false, concocted and has been putforth to implicate the accused Labh Singh, who was having no role in killing of deceased Ram Singh on account of long standing enmity between the complainant and the accused party with regard to 5 litigation over the land and giving evidence against each other. The most surprising factor towards which the learned counsel has drawn our attention about the false implication of the accused Labh Singh is the statement of Radhey Shyam Sharma, Addl.S.P., PW 13, who has stated that from his investigation, it was found that the real culprit was Prithvi Singh by whose `Sela', deceased Ram Singh died but neither this Prithvi Singh has been chargesheeted nor any investigation has been made from him and on the contrary, on account of enmity, the present accused appellant has been falsely implicated. It has been further submitted by the learned counsel that the version of the investigating officer that it was Prithvi Singh, who was the real culprit, finds favour from the site plan as well as the statement of another investigating officer viz; Krishnavatar Tyagi, PW 12, who has said that no blood was found from point `A', where the incident is said to have taken place. According to him, the learned trial Judge while passing strictures against Radhey Shyam Sharma, Addl.S.P., PW 13, has ignored the real story of the prosecution. 5. Per contra, learned counsel for the complainant and the learned Public Prosecutor have supported the 6 judgment of the learned trial Court. 6. First, we will discuss the testimony of both the investigating officers, who have brought out the different versions with regard to investigation. 7. Radhey Shyam Sharma, PW 13, who took over the investigation at the later stage as Addl.S.P., CID, Crime Branch, Bikaner, has initially deposed in the examination in chief about the facts narrated in the chargesheet, which was filed by him but when he was cross examined, he has clearly stated that he also investigated about the incident from Nanak Ram, Surja Ram and Lal Chand and came to know that on account of the injury with `Sela' inflicted by Prithvi Singh, deceased Ram Singh died but Prithvi Singh was absconding, therefore, he could not investigate from him. The cause of homicidal death as per the post mortem report Ex.P.16 is shock due to massive blood loss as a result of injury to the aorta and small intestine, which was coming out from the abdominal wound. When the main investigating officer has deposed that the cause of death is abdominal wound, which is said to have been inflicted by Prithvi Singh with `Sela', 7 then without making any investigation from Prithvi Singh, implication of the accused appellant Labh Singh for this injury, creates heavy doubt on the prosecution story and merely passing strictures by the learned trial Judge against this investigating officer will not suffice to arrive at a just & fair conclusion as to who is the real culprit of the crime. 8. The original investigating officer Krishnavatar Tyagi, PW 12, has simply said in his cross examination that he did not call Prithvi Singh for investigation. When the investigating officer, who filed chargesheet, has implicated Prithvi Singh for causing `Sela' injury on the abdomen of deceased Ram Singh, then connecting accused Labh Singh with the recovery of `Sela' does not inspire confidence in the prosecution story that he was the actual & real culprit simply on the basis of evidence of other eye witnesses and recovery of `Sela' vide Ex.P.20 from the accused appellant Labh Singh, which has been recovered from the house of Badri Ram as shown in the site plan of recovery, Ex.P.21. 9. Another `Sela' has been recovered from the accused Sultana Ram vide Ex.P.18. Both the `Selas' 8 were sent for chemical examination and as per the report of the analyst, the blood stains on these `Selas' could not be determined. Therefore, linking with the evidence of recovery of `Sela' and arriving at a conclusion of guilt of the accused on the basis of this recovery is totally unbelievable. 10. Now coming to the site plan with regard to the place of incident in the FIR Ex.P.1, it has been stated in the last line that the occurrence took place in front of the house of Badri Ram. The house of Badri Ram has been shown at point `20' of the site plan Ex.P.7 and the dead body of Ram Singh has been found at point `A'. According to the investigating officer, Krishnavatar Tyagi, PW 12, the dead body of Ram Singh was found at point `A' and the blood was found from point `AA' to `AAA' and no blood was found at point `A'. It is highly improbable that when from the abdominal wound, large quantity of blood had come out and it spread on the soil, then why the blood was not there at the place where the dead body of Ram Singh was found. This further creates doubt in the story of the prosecution. The point `15' is shown to be the house of Prithvi Singh, a person against whom the allegation of inflicting 9 `Sela' blow has been levelled by the investigating officer Radhey Shyam Sharma, PW 13. According to the details of the site plan Ex.P.7A and site plan Ex.P.7, the foot steps, stones and blood are found in front of the house of Harnek Singh, who is the brother of Prithvi Singh and the Dungar Singh's`Kotha' is at point `25', whereas the actual site in the plan has been shown to be in front of the house of Badri Ram, which is on the eastern side and the site of occurrence has been shown to be on the extreme western side. This further creates doubt in the story of the prosecution with regard to the place of incident as well. 11. Apart from the factum of recovery and site plan, the eye witnesses who have been put forth by the prosecution are also not reliable because all the three eye witnesses viz; Sultan Singh PW 1, Saheb Ram PW 2 and Duli Chand PW 3 are interested witnesses and have admitted that there is a constant litigation between him and the accused. P.W.1 Sultan Singh has admitted that he gave evidence against the accused Labh Singh. He has also given out the place of occurrence at Badri Ram's house but no blood was found there. He has also admitted that deceased Ram Singh was his real uncle 10 and Rajendra Singh and Jet Singh were the sons of Ram Singh. Rajendra Singh and Kishore Singh were cited as witness but they have not been produced, especially when it is alleged that Rajendra Singh took the dead body to the hospital. Saheb Ram, PW 2, who is another relative witness, has stated that the place of occurrence is in front of Ram Singh's house. Duli Chand, PW 3, who is also a chance witness, has said that he saw the incident from the wall, which is at the height of 4ft to 5ft., which appears to be improbable but his name has not been mentioned in the FIR. In this regard, the most important evidence is of Dr.Pratap Singh Bhatia, PW 5, who has stated that injuries on the person of Sultan Singh were simple in nature. According to Sultan Singh, injury with `Sela' was inflicted on his arm but no blood had come out. Thus, viewed from all the angles with regard to various aspects of recovery, place of occurrence, inter se relationship of witnesses, their enmity with the accused party vis a vis leaving the real culprit Prithvi Singh as stated by Radhey Shyam Sharma, Addl.S.P., PW 13, who submitted the chargesheet, clearly shows that the story of the prosecution has proceeded on two different lines and it appears to be cooked one. 11 12. On the basis of such story as put forth by the prosecution, it will be very unsafe for this Court to arrive at the conclusion of the guilt against accused appellant Labh Singh. Learned trial Judge has clearly ignored the basic principles of appreciation of evidence in a Criminal trial to arrive at the conclusion of guilt. We are, therefore, unable to agree with the finding of guilt, arrived at by the learned trial Judge and we give benefit of doubt to accused appellant Labh Singh in commission of murder of deceased Ram Singh with `Sela' blow. 13. Consequently, we allow this appeal, set aside the judgment dt.15.12.1983 passed by learned Addl.Sessions Judge, Sri Ganganagar, convicting appellant Labh Singh of the offence u/s.302 IPC & sentencing him to undergo life imprisonment alongwith a fine of Rs.100/- & in default, to further undergo 30 days' S.I. and acquit him of the charge, levelled against him. He is on bail, his bail bonds stand cancelled. (DEO NARAYAN THANVI), J. (A.M.KAPADIA), J. RANKAWAT JK, PS