1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G M E N T : KHAJAN SINGH & ORS. VS. STATE OF RAJASTHAN D.B. CRIMINAL APPEAL NO. 44/2003 against the judgment dated 26.11.2002 passed by the learned Additional Sessions Judge (Fast Track), Anoopgarh, District Sri Ganganagar in Sessions Case No.131/2001. **** DATE OF JUDGMENT :: 28th MARCH, 2006 PRESENT HON'BLE MR. N.N. MATHUR, J. HON'BLE MR. MANAK MOHTA, J. Mr. Hemant Jain, for the appellants. Mr. Vishnu Kachhwaha, Public Prosecutor. Mr. Manoj Kumar Garg ] for the complainant. Mr. Niranjan Singh ] Reportable BY THE COURT : (PER HON`BLE MANAK MOHTA, J.) 1. The instant appeal is directed against the judgment of conviction and sentence dated 26.11.2002 passed by learned Additional Sessions Judge (Fast Track), Anoopgarh, Distict Sri Ganganagar in Sessions case No.131/2001 whereby the learned Judge has convicted and sentenced each of the appellants as under :- 2 BHAJAN SINGH 302 I.P.C. Imprisonment for life and a fine of Rs.1000/-,in default payment of fine to further undergo three months' rigorous imprisonment. 148 I.P.C. Two years' rigorous imprisonment and a fine of Rs.100/-, in default payment of fine to further undergo one months' additional imprisonment. 447/149 I.P.C. Three months' rigorous imprisonment. 25(1B) (a) of Arms Act : One years' rigorous imprisonment and a fine of Rs.100/-, in default payment of fine to further undergo one months' additional rigorous imprisonment. 27 of Arms Act : Three years' rigorous imprisonment and a fine of Rs.500/-, in default of payment of fine, to further undergo two months' rigorous imprisonment. KHAJAN SINGH : 302/149 I.P.C. Imprisonment for life and a fine of Rs.1000/-,in default payment of fine to further undergo three months' additional rigorous imprisonment. 148 I.P.C. Two years' rigorous imprisonment and a fine of Rs.100/-, in default payment of fine to further undergo one months' additional imprisonment. 447/149 I.P.C. Three months' rigorous imprisonment. 3 BANTA SINGH : PREM SINGH : GURMUKH SINGH @ GURTHI : 302/149 I.P.C. Imprisonment for life and a fine of Rs.1000/-,in default payment of fine to further undergo three months' additional rigorous imprisonment. 147 I.P.C. One year's rigorous imprisonment and a fine of Rs.100/-, in default payment of fine to further undergo one month's additional rigorous imprisonment. 447/149 I.P.C. Three months' rigorous imprisonment. 2. The prosecution case, as disclosed during trial, is that on 7.5.2000 on the statement of Malkhan Singh (Exhibit-D/26) recorded by police an FIR (Exhibit-P/27) under Sections 307, 447, 324, 323, 147, 148, 149 I.P.C. and Section 27 of the Arms Act was registered at P.S. Srivijay Nagar, District Sri Ganganagar against six accused persons, namely, Khajan Singh, Bhajan Singh, Gurmukh Singh @ Gurthi, Prem Singh, Banta Singh, Phaglu Singh and one more person alleging inter alia that Makhan Singh is having an agricultural land measuring 15 bighas and 4 biswas at Chak No.1MSD, Murabba No.135/343, which he purchased from one Gulam Kadar about two years back and since then he is in possession of the same, previously the land in question was in the 4 possession of Bhajan Singh, Khajjan Singh etc. The accused persons forcibly wanted to dis-possess complainant-Makhan Singh (deceased) from the land in question. On 7.5.2000 at about 1:00 p.m., Makhan Singh, his sons – Sikander Singh, Pakhar Singh, his brother-in-law Dilbagh Singh and friend-Sukha Singh were present in the 'Dhani' located at Killa No.11 in the said field, at that point of time, Bhajan Singh, Khajan Singh, Banta Singh, Prem Singh, Gurmukh Singh @ Gurthi sons of Banta Singh and two other persons formed an unlawful assembly and forcibly entered in the field of Makhan Singh and exhorted to go away from the field. Bhajan Singh was having a 12-bore single barrel gun and the rest of accused persons were having lathies and gandasies in their hands. On this, Makhan Singh and others ran towards the field of Hardayal Singh. Bhajan Singh with an intention to kill, made two gun-shots from the gun which he was having, one of the gun-shot hit Makhan Singh's right side of abdoman. Accused-Khajan Singh gave a 'gandashi' blow on the face of Makhan Singh, due to which Makhan Singh fell down, upon which the remaining accused persons gave beating to Makhan Singh on the back side of chest, lower-back and hands by lathies, on which, Makhan Singh shouted 'mara'... 'mara'... and on hearing the commotion, his sons, brother-in-law and Sukhha came for his rescue, upon which the accused persons took to their heels. The injured-Makhan Singh was taken to 5 Government Hospital, Srivijay Nagar and the police was called, where in presence of Dr. Devi Lal Bhakar (PW-12) dying declaration (Exhibit-P/26) of Makhan Singh was recorded and on that basis an FIR No.121/2000 (Exhibit-P/27) was chalked out under the above mentioned Sections. On the advise of doctor injured-Makhan Singh was referred to Bikaner Hospital but while Makhan Singh was being shifted, on way near Chhatargarh, he succumbed to the injuries sustained by him, upon which, he was brought back to Srivijay Nagar Hospital, where post-mortem of his dead-body was conducted on the next day. The offence of Section 302 I.P.C. was added. 3. After completion of investigation, police filed charge- sheet against Bhajan Singh, Khajan Singh, Gurmukh Singh and Prem Singh for the offence under Sections 302, 447, 147, 148, 149 I.P.C. and under Section 27 Arms Act. An additional charge-sheet was also filed against Banta Singh under the above mentioned offences. Later on supplementary charge-sheet against Bhajan Singh under Section 25(1-B)(a) of Arms Act and against Phaglu (in absentia) under Section 299 Cr.P.C. for the offence under Sections 302, 447, 147, 148, 149 and under Section 27 of Arms Act in the court of Judicial Magistrate, First Class, Srivijay Nagar and all were committed to the Sessions Court. Thereafter, the case was 6 transferred to the court of learned Additional Sessions Judge (Fast Track), Anoopgarh, District Sri Ganganagar where the present accused-appellants were tried and the proceedings against Phalku was separated. The accused-appellants pleaded not guilty to the charges framed against them and claimed trial. 4. The prosecution in support of its case examined as many as 17 witnesses, namely, PW-1 Resham Singh, PW-2 Ramji Lal Meena, PW-3 Tara Chand, PW-4 Vijay Kumar, PW-5 Sohan Lal Goswami, PW-6 Ganesh Kumar Bishnoi, PW-7 Om Prakash Jat, PW-8 Bhanwar Singh Rajput, PW-9 Sikander Singh, PW-10 Kaaraj Singh, PW-11 Kuldeep Singh, PW-12 Dr. Devi Lal, PW-13 Gurudutt Singh, PW-14 Dilbagh Singh, PW-15 Sukhdev Singh, PW-16 Ram Swaroop, PW-17 Ram Pratap and got exhibited certain documents as Exhibit-P/1 to Exhibit-P/56. The accused-appellants in their statements recorded under Section 313 Cr. P.C. denied the correctness of prosecution evidence appearing against them. The accused persons stated that there was a dispute going on between them and the complainant-party with regard to possession over the land in question. The complainant-party wanted to forcibly oust them from the 'dhani' and with that view they had been falsely implicated in this case. As per the accused-party, Makhan Singh and others were the aggressor. They attacked on them, Makhan 7 Singh made fire and caused injuries to Bhajan Singh, Smt. Mindo and Smt. Kaushalya. From the side of defence, no oral evidence was produced, however, certain documents were exhibited as Exhibit-D/1 to Exhibit-D/10. 5. After finally hearing the parties, the learned trial court having found the prosecution case proved against the accused- appellants beyond all reasonable doubts, turned down the defence version and held them guilty for committing murder of Makhan Singh. The learned court convicted and sentenced the appellants as mentioned above vide judgment dated 26.11.2002. Hence, this appeal has been filed. The learned trial court also decided Sessions Case No.18/2002 titled as cross-case by acquitting the accused on the same day. 6. We have heard Mr. Hemant Jain, learned counsel for the appellants, learned Public Prosecutor for the State Mr. Vishal Kachhwaha assisted by learned counsel for the complainant and have carefully gone through the record of the case. 7. During the course of arguments, learned counsel for the accused-appellants submitted that the learned trial court has not properly considered and appreciated the material available on 8 record and gave erroneous finding and as such the conviction of the accused-appellants is not sustainable. Learned counsel submitted that in fact the complainant-party was the agressor and they wanted to dis-possess the accused persons from the 'dhani' situated in Murabba No.135/243 as indicated in the site-plan (Exhibit-P/2) and for that they formed unlawful assembly. That apart, it was contended that Bhajan Singh, his wife Vero, sister-Bindo Bai, brother-Khajan Singh, nephew-Prem and Gorkha, brother-in-law Banta Singh and Bhojai-Kaushalya, who all were sitting in the field, when Makhan Singh, Sikander Singh, Pakhar Singh, Bagh Singh, Sukha Singh and 4-5 others came and forcibly tried to oust the accused-party from the 'Dhani'. Makhan Singh opened fire with his 12-bore double barrel gun. At that time other persons accompanying Makhan Singh were having lathies and gandashies in their hands. It was contended that the cartridge of gun-shot hit Bhajan Singh's leg and so also Bhajan Singh's sister-Smt. Mendo and 'bhojai' Smt. Kaushalya. At that time, Smt. Kaushalya and Smt. Mendo snatched the gun from the hands of Makhan Singh, which was taken by Bhajan Singh, who shot fire in defence at Makhan Singh. Thereafter, Bhajan Singh produced that gun before the police and lodged FIR No.122/2000 (Exhibit-D/1) against Makhan Singh, Sikander Singh, Pakhar Singh, Bagh Singh, Sukha Singh and 4-5 persons. It was submitted that the police also 9 investigated the cross-case and submitted charge-sheet against Sikander Singh and others for the offence under Sections 307, 324, 447/149, 147, 148 I.P.C. and 27 of Arms Act, which was titled as cross-case No.18/2002 – State of Rajasthan Vs. Sikander Singh & Ors. but the learned trial court has not given due weightage to the defence version and has concluded the matter one sided and on this count the judgment is not sustainable. 8. Learned counsel for the appellants further pleaded that finding of the trial court is based on the evidence of PW-9 Sikander Singh, PW-14 Dilbagh Singh and PW-15 Sukhdev Singh, who are respectively son, brother-in-law and friend of deceased-Makhan Singh. They are interested witnesses and accused of cross-case hence on their testimony conviction of the accused-appellants is not sustainable as there are several contradictions and inconsistencies in their statements and, therefore, no conviction can be based thereon. 9. The learned counsel further contended that the prosecution has not been able to prove the place of occurrence. PW-9 Sikander Singh and other witnesses stated that the incident took place at Kila No.21 and 22 in Murabba No.135/343 but the Investigating Officer stated that the incident took place in Murabba 10 of Hardayal Singh at Kila No.25. Likewise, it is also not clear from the prosecution side that from where Bhajan Singh fired. In this way, the story put forward by the prosecution is doubtful and no conviction can be maintained. 10. Learned counsel for the appellant submitted that the learned trial court has given much emphasis on the dying declaration (Exhibit-P/26) given by deceased-Makhan Singh. It was urged that looking to the position of deceased-Makhan Singh and further to the statement of Dr. Devi Lal (PW-12), he was not in a position to give statement. It was also urged that the police officer has not obtained fitness certificate before recording of the dying declaration. Thus, it was submitted that the dying declaration is a concocted document and no importance should be given to that. 11. The learned counsel for the appellant also submitted that on the very same day, the accused-party had lodged FIR in the Police Station. Injury reports of Smt. Mindo W/o. Banta Singh and Bhajan Singh were produced in defence but the prosecution has not been able to explain how the injuries were caused to the accused persons. Their remains serious doubts about the prosecution story and it can easily be inferred that the incident did not happen in the way it has been stated but the learned trial court has not taken into 11 consideration this material aspect of the case. 12. It was also stated that the recoveries of weapons are also doubtful. It is said that the gun has been recovered at the instance of Bhajan Singh and 'gandasi' has been recovered at the instance of Khajan Singh but the very recoveries have been shown from places which were not in the exclusive possession of accused persons. They are not trustworthy. Likewise from the other accused persons lathies are said to have been recovered but that does not inspire confidence. During the course of arguments, learned counsel for the appellant relied upon the following citations : 1.Gopal & Ors. Vs. State of Raj. [1989 Cr. L.R. (Raj.) 291 2.Bharosi Gurjar & Ors. Vs. State of Raj. [2006(2)RDD 1238 Raj.DB] 3.Shiv Lal & Five Ors. Vs. State of Raj. [2006(3)RDD 1257 Raj. DB] 13. On the above submissions, it was urged that the prosecution has not been able to prove the charges levelled against the accused persons. Lastly, it was prayed that the appeal may kindly be allowed, judgment of conviction and sentence may kindly be set aside and the accused-appellants be acquitted. 12 14. On the contrary, the learned Public Prosecutor appearing on behalf of State refuted the contentions placed by the learned counsel for the appellant and supported the judgment. It was submitted that merely because the witnesses are relatives and interested persons, their testimony cannot be discarded and in that case it becomes the duty of the court to appreciate their evidence with extra care and caution. It was also submitted that the complainant-party was not the aggressor but it was the accused- appellants who wanted to dis-possess the complainant-party from the field and they formed unlawful assembly and with preparation attacked the complainant-party, as a result of which Makhan Singh died. The accused-Bhajan Singh was having a 12-bore single barrel gun and fired two gun-shots. One gun-shot was fired when Makhan Singh was running to escape towards the adjoining field of Hardayal Singh and the second gun-shot hit him, when he fell down in Kila No.25 of that field during beating. It was urged that the prosecution has been able to prove the case beyond reasonable doubt against the present accused-appellants. It was also submitted that Makhan Singh was taken to hospital, where on the satisfaction of PW-8 Bhanwar Singh statement of Makhan Singh (Exhibit-P/26) was recorded in presence of Dr. Devi Lal (PW-12), who has certified on the statement that the deceased was in a fit state of mind to give statement and the same is deposed in evidence of Dr. Devi Lal 13 (PW-12). The learned trial court has rightly relied upon his statement. The learned Public Prosecutor also submitted that the accused-party had later on lodged cross-case in defence to escape from the responsibility of conviction and the learned trial court has rejected their version and convicted the accused persons. Thus, the defence version has no locus standi. It was also submitted that the prosecution has proved its case with the aid of eye-witnesses and they are corroborating each other. Thus, looking to their statement, it was not necessary for the prosecution to explain the injuries sustained by the accused persons. The accused persons have not come in defence and merely they have produced injury reports of Bhajan Singh and Smt. Mindo. The injured persons have also not come in evidence. Thus, the learned trial court has rightly rejected their defence. The authorities submitted by the learned counsel for the appellants do not apply to the present case. Thus, it was prayed that the judgment of conviction and sentence passed by the learned trial court be maintained and the appeal may be rejected. 15. Before adverting to the contentions raised by the learned counsel for the appellant, it would be just and proper to briefly survey the oral evidence adduced by the prosecution : 16. PW-1 Resham Singh and PW-10 Kaaraj Singh are 14 the witnesses of Fardats. PW-1 Resham Singh has stated in his statement that on 8.5.2000 he saw the dead-body of Makhan Singh. Fard-Surat-Haal-Lash (Exhibit-P/1) and site-plan (Exhibit-P/2) were prepared before him and A to B are his signatures. He has further stated that police collected blood contained soil, simple soil and 'Daat' of 12-bore gun vide Exhibits-P/3, P/4 and P/5 and sealed them on the spot. PW-10 Kaaraj Singh stated that the police prepared site-plan (Exhibit-P/2). Police also recovered blood contained soil and other material from the site and prepared Fards Exhibit-P/3, P/4 and P/5 and got his signatures at C to D on them. He has further stated that police also recovered blood contained cloths of deceased-Makhan Singh vide Exhibit-P/28 and C to D is his signature. He has stated that the land in question belonged to Gulam Kadar, from whom Makhan Singh purchased the said land vide agreement (original) Exhibit-P/51. Copy of that agreement is Exhibit-P/51A. He further stated that on the agreement, Gulam Kadar appended his thumb impression at three places whereas he and Jagir Singh put their signatures as witnesses. The agreement was attested by Notary Public. In cross-examination he further stated that the injured-Makhan Singh was lying in Kila No.25 of Hardayal Singh. The land of Hardayal Singh is adjacent to the land of Makhan Singh. He has also stated that blood contained soil and simple soil were collected from the field of Hardayal Singh where 15 Makhan Singh was beaten. 17. PW-2 Ramji Lal is an important witness. He is the Patwari of that area. He stated that Chak No.1 MSD, Murabba No.135/343 measuring 15 bighas and 4 biswas stand in the name of Gulam Kadar and was permanently allotted to Gulam Kadar. Jamabandi of that land (Exhibit-P/-6) and Exhibit-P/7 stand in the name of Gulam Kadar. He has further stated that since the day of his posting, he had seen Makhan Singh was cultivating the said land and after the murder of Makhan Singh, his legal heirs are cultivating the same. 18. PW-3 Tara Chand and PW-6 Ganesh Kumar are the witnesses of Malkhana Incharge of concerned Police Station. PW-3 Tara Chand has stated that on 7.5.2000, he was posted as Incharge Malkhana of P.S. Vijaynagar. He further stated that on 8.5.2000 three sealed packets were deposited by Bhanwar Singh, Sub- Inspector. On 9.5.2000, 17.5.2000, 19.5.2000 and 25.5.2000, the concerned Investigating Officer i.e. Bhanwar Singh, Sub-Inspector deposited items in sealed packets pertaining to FIR No.121/2000 (State Vs. Khajan Singh & Ors.). He made entry in Malkhana Register (Exhibit-P/8). He further stated that the sealed packets remained intact with him during his tenure. PW-6 Ganesh Kumar 16 stated that on 6.8.2000 he gave three sealed packets to Sohan Lal (FC) for depositing in FSL, Jodhpur and four sealed packets to Vijay Kumar (FC) for depositing in FSL at Jaipur and made entry to that effect in Exhibit-P/8. He also stated that on 21.8.2000 a sealed packet was deposited by Shri Om Prakash Godara, SHO, Vijaynagar and he made entry in Exhibit-P/8 at item No.11. 19. PW-4 Vijay Kumar and PW-5 Sohan Lal are Constables and were the carriers of articles for depositing the same at FSL, Jaipur and Jodhpur. PW-4 Vijay Kumar stated that he received four packets from Ganesh Kumar concerning FIR No.121/2000 and deposited the same at FSL, Jaipur and obtained receipt (Exhibit-P/10). He has also stated that he obtained covering letter from Superintendent of Police, Sri Gangangar and the carbon copy of that letter is Exhibit-P/12. He stated that the goods remained intact with him and in sealed condition he deposited the articles at FSL, Jaipur. PW-5 Sohan Lal stated that he received three sealed packets from Malkhana Incharge Shri Ganesh Kumar and obtained letter from the Superintendent of Police, Sri Gangangar, deposited the goods at FSL, Jodhpur and obtained receipt (Exhibit-P/12). The carbon copy of letter issued by the SP, Sri Ganganagar is Exhibit-P/14. 17 20. PW-9 Sikander Singh, PW-14 Dilbagh Singh and PW15 Sukhdev Singh are the eye-witnesses of occurrence and they are the son, brother-in-law and friend respectively of deceased-Makhan Singh. PW-9 Sikander Singh has stated that on 7.5.2000 at about 1:00 p.m., he was watering Murabba No.135/343, at that time, Pakhar Singh, Dilbagh Singh and Sukhdev Singh were also there. He stated that they took the possession of field from Gulam Kadar and before taking of possession, Bhajan Singh etc., were cultivating the field. He had cultivated wheat and was watering the field. At that time, Bhajan Singh, Khajan Singh, Premi, Gurkhi, Banta Singh and Phalgu came exhorting “maar-do-maar-do”. At that time, his father-Makhan Singh was burning the garbage of wheat-husk in Killa No.21 and 22. He further stated that Bhajan Singh was having a gun, Khajan Singh was holding 'gandasa' and others were having lathies. At that time, Bhajan Singh fired gun-shot which hit on his father-Makhan Singh's back while he was running. The other accused persons attacked with lathies and Khajan Singh attacked with 'gandasa' on the face of Makhan Singh. He further stated that his father ran towards the field of Hardayal Singh and due to beating, his father fell down in Kila No.25. Bhajan Singh thereafter fired gun-shot on his father's abdomen. His father got seriously injured. The injured was picked up and taken to hospital, where police recorded his statement. 18 Looking to the serious nature of injuries, doctor referred for treatment at Bikaner Hospital and while Makhan Singh was being taken to Bikaner, on way at Chhatargarh he died. The blood- smeared cloths (Exhibit-P/28) of Makhan Singh were removed in his presence at Vijaynagar Hospital. The police prepared Exhibit-P/28 and site-plan (Exhibit-P/2) in his presence and the post-mortem of dead body was conducted. In his cross-examination, he has stated that at the time of incident, his father was standing in Kila No. 21 and 22. He also stated that the first gun-shot hit his father in Kila No.21 and 22. The second gun-shot hit his father in Kila No.25 i.e. the field of Hardayal Singh. He denied the suggestion that his father was having a 12-bore double barrel gun by which he fired at Bhajan Singh and injured him. He also denied that Bero Bai, Kaushaliya, Mindo Bai were injured due to firing made by Makhan Singh. He also denied that on the day of occurrence he, his brother-Pakhar Singh, uncle-Bagh Singh, father-Makhan Singh and 4-5 others armed with weapons came to the 'dhani' of accused persons in order to dis- possession them and his father fired at Bhajan Singh and Bhajan Singh in his right to private defence snatched away the gun from Makhan Singh and fired at him due to which Makhan Singh fell down at Bhajan Singh's dhani and thereafter he had been lifted to the field of Hardayal Singh. He was confronted with his previous police statement (Exhibit-D/8). We have seen the relevant portions and 19 there are no material contradictions. He has also stated that blood contained soil was collected by the police from Kila No.25 of Hardayal Singh where his father was lying. Further he has also denied that Gulam Kadar did not give possession of that land to them. PW-14 Dilbagh Singh has stated that deceased was his brother-in-law. He stated that Makhan Singh is having land at 1 MSD. He came there for watering the crops. At that time alongwith him, Sikander Singh, Pakhar Singh, Makhan Singh and Sukha Singh were also present there. Makhan Singh was burning garbage. At that time Bhajan Singh, Khajan Singh, Banta Singh, Prem Singh, Gurpreet and two other persons came from the side of 'dhani'. Bhajan Singh was having a 12-bore single barrel gun. Khajan Singh was having a 'gandashi' and the others were armed with lathies. He has further stated that Bhajan Singh fired a gun shot when Makhan Singh was running towards the western side i.e. the field of Hardayal Singh and the second gun shot was fired in Kila No.25, which is the field of Hardayal Singh. He also stated