1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T Mothu Singh & Anr. vs. State of Rajasthan D. B. Criminal Appeal No. 113/2005 against the judgment dated 19.1.2005 passed by Additional Sessions Judge, Nohoar Distt. Haunmangarh, Sessions Case No.19/2003 (88/02). Date of Judgment :: 18.5.2010 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR HON'BLE MR.JUSTICE C.M.TOTLA Mr. HSS Kharlia, for the appellants. Mr. KR Bishnoi, PP, for the State. Mr. M.K. Garg with Mr. Niranjan Singh, for the complainant. .... BY THE COURT : (PER HON'BLE MATHUR,J.) This appeal is preferred to assail validity correctness and propriety of the judgment and order dated 19.1.2005, passed by the learned Addl. Sessions Judge, Nohar District – Hanumangarh convicting accused Mothu Singh for the offence punishable under Section 302/34 IPC and accused appellant Jagga Singh for the offence punishable under Section 302 IPC. Both the accused as a consequent to the conviction 2 recorded as aforesaid are sentenced to undergo imprisonment for life term with a fine of Rs.10,000/-, and further to undergo three years additional imprisonment in the event of default in payment of fine. The accused Jagga Singh by the same judgment and order is also convicted for an offence punishable under Section 27 of the Arms Act and sentenced to undergo 3 years rigorous imprisonment with a fine of Rs.1000/- and further to undergo three months additional imprisonment in the event of default in making payment of fine. Briefly stated, facts of the case are that on 7.9.2002 at about 6.30 pm a first information report was lodged at police station Sangaria as per oral statement (Ex.P/18) of one Sh. Major Singh S/o Deedar Singh (PW-5). As per document Ex.P/18 some dispute occurred on 31.7.2002 relating to closure of water outlet by Teni S/o Amarjeet Singh, consequent thereto a criminal case was lodged in police station Sangaria on 1.8.2002. Mothu Singh S/o Amarjeet Singh, Jagga Singh @ Sukhmender Singh and Gagandeep Singh S/o Fakeer Singh being annoyed with the case aforesaid armed with weapons were moving around the fields of the informant party, armed with weapons with an intention to kill them. On 7.9.2002 one Gurdeep Singh came to the place of informant along with whom informant Major Singh went to village Kikarwali to purchase some domestic goods. At about 5.30 pm Gurdeep Singh and Mothu Singh reached at the shop of Mohan Singh, where 3 Heera Singh (deceased) younger brother of Mothu Singh came on a mare and at that time Mothu Singh and Jagga Singh also reached at the spot. Mothu Singh then gave a slap to Heera Singh and Jagga Singh @ Sukhmender Singh fired a gun shot on the chest of Heera Singh. Heera Singh fell down in front of the shop of Mohan Singh and both the accused persons fled away from the spot on their motor-cycle. On basis of the information aforesaid a case was lodged, investigation was made and a charge-sheet as per provisions of Section 173 Cr.P.C. was filed. The case being exclusively triable by the Court of Sessions was committed to it. The charges framed by the court were denied by the accused persons, therefore, regular trial was conducted. During the course of trial prosecution supported its case with the aid of 18 witnesses, out of whom PW-5 Major Singh, PW-6 Gurdeep Singh, PW-9 Angrej Singh were cited as eye-witnesses. PW-10 Ramdev Singh being investigating officer narrated all the steps taken during the course of investigation. PW-7 Dr. Mrs. Sushila was one among the Board of Doctors, that conducted autopsy on the body of deceased Heera Singh, thus, she proved the postmortem report Ex.P/22. She also stated about other medico legal aspects of the matter. The prosecution also produced 33 documents before the court to get their contents established. As per provisions of section 313 Cr.P.C. the accused appellants availed opportunity to explain all the circumstances available 4 adverse to them in prosecution evidence. They denied whatever material available against them in the prosecution evidence, and pleaded their innocence. Three documents, Ex.D/1 (statements of Sh. Munshi Ram under Section 161 Cr.P.C.), Ex.D/1 (statements of Major Singh recorded as per provisions of Section 161 Cr.P.C.) and Ex.D/2 (statements of Grudeep Singh recorded under Section 161 Cr.P.C.) were produced in defence. Learned trial court after examining the entire evidence available on record held the accused appellants guilty for the charges levelled, accordingly, convicted and sentenced. In appeal, the basic contention of learned counsel for the appellants is that conviction is based on the evidence which is not at all reliable, thus, reasonable doubt exists in believing the prosecution case. It is urged that, as a matter of fact, PW-5 and PW-6, on statements of whom the trial court relied, by treating them eye-witnesses of the incident, were not at all present on the spot at the time of occurrence. To substantiate the contention learned counsel for the appellant has pointed out several contradictions in the statements of PW-5 and PW-6 and also with the statements of PW-9 Angrej Singh. Certain contradictions and improvements in the statements of PW-5 and PW-6 are also pointed out by referring the documents produced at the instance of prosecution including the statements of PW-9 Angrej Singh, recorded by the investigating agency during the course of investigation. 5 A doubt is also sought to be created relating to recovery of fire arm at the instance of accused Jagga Singh and also its scientific examination by the Forensic Science Laboratory. Per contra, learned Public Prosecutor and counsel for the complainant supported the conviction recorded and sentence awarded in general. It is urged by Sh. Manoj Garg, learned counsel for the complainant, that there is no reason to disbelieve testimony of eye- witnesses PW-5 and PW-6. As per him the contradictions pointed out by learned counsel for the appellant are quite minor, and thus, deserves to be ignored while examining substance of the narration made by the eye- witnesses. We have considered the arguments advanced and also scrutinized the record available. PW-7 Dr. Sushila was Member of the Medical Board that conducted autopsy on body of Heera Singh, thus, she on basis of postmortem report Ex.P/22 stated that the body concerned was having one gun shot injury which was a wound elliptical in shape with the size of 1 ¼ inches X ¾ inches, inserted margin wound traverse downward, medially into thoracic cavity. 1 inch lacerated wound below to left nipple with no blackening, no tattooing around the wound. As per medical evidence 6 the direction of wound was downward towards thoracic cavity. The wound aforesaid was ante-mortem in nature. As per this witness the cause of death was extensive hemorrhage and shock resulting from injury to heart and lung, caused by gun-shot. In view of the medical evidence there is no doubt about homicidal death of Heera Singh. PW-10 Ramdev Singh, the investigating officer, was examined by the court in detail and he narrated all the steps taken during the course of investigation. As per PW-10, FIR Ex.P/18 was registered on basis of oral information given by Major Singh (PW-5). This witness also verified the fact relating to recovery of fire arm and blank disposed of cartridge at the instance of accused Jagga Singh as per recovery memo Ex.P/23. The factum relating to remission of seized and recovered articles for their serological examination too was verified by this witness. As per PW-10 the blank cartridge, recovered at the instance of accused Jagga Singh did not properly fit in the magazine of pistol which was also recovered at the instance of accused Jagga Singh. This witness also stated that the blood stained shirt of deceased was found burnt at the border of the cut occurred near pocket due to gunshot. Pertinent to note here that the shirt of deceased was seized by the prosecution as per Ex.P/27, wherein too the fact relating to burn marks around the gunshot hole were noticed. PW-10 Ramdev Singh also stated that Major Singh (PW-5) came to the spot of occurrence after his reaching at spot. 7 PW-9 Angrej Singh was cited by the prosecution as an eye- witness, however, he did not support the prosecution case, thus, was declared hostile. However, we would like to discuss the statements of this witness too, to the extent those are not inconsistent with the statements given by him as per provisions of Section 161 Cr.P.C. PW-9 Angrej Singh during the course of investigation, as per Ex.P/25, stated before the investigating officer that he is having a provision shop in village Kikarwali and on 7.9.2002 at about 5.30 pm when he was inside the shop he heard a sound of fire, consequently, he came out where he saw that a white mare was running towards South. Heera Singh S/o Deedar Singh was lying down in front of shop and he was having a gunshot at his chest. One person Mothu Singh S/o Amarjeet Singh was also running from the spot. On taking care of Heera Singh he was found dead. Certain persons standing at the spot informed that the boys of Majhabis killed Heera Singh. It is pertinent to note here that in its entire narration of facts Angrej Singh did not say anything about presence of Jagga Singh and even quarrel by Mothu Singh with deceased Heera Singh. As a matter of fact, Angrej Singh nowhere stated to the investigating agency that he witnessed the incident relating to killing of Heera Singh. Angrej Singh (PW-9), as a matter of fact, quite in consonance 8 with his version as stated before the investigating agency also stated before the court that on 7.9.2002 he heard some sound like cracker and on coming out he saw a man lying down in front of his shop. He also stated that he saw a white mare running from the spot towards West. The only fact inconsistent to his earlier version is that he stated before the court that no person running from the spot was seen by him. During the course of cross-examination this witness also stated that near the body of deceased Heera Singh no man was present and looking to all circumstances he himself was quite depressed. As per this witness , immediately after incident he closed shop and locked the same and then he was taken by Yunus Ali to his home. PW-5 Major Singh stated that at about 5.30 pm he alongwith Gurdeep Singh came to Mohan Singh's shop where Heera Singh too came on mare. When Heera Singh stepped down from the mare, Mothu Singh gave him a slap and Jagga Singh gave a shot from his pistol, consequently, Heera Singh fell down. Mothu Singh and Jagga Singh then fled away from the spot towards North. As this witness, within a period of 2-3 minutes, made a telephone from the shop of Mohan Singh to his home conveying about the incident. This witness also stated that immediately after giving slap by Mothu Singh, Jagga Singh fired the pistol, and as such, there was no occasion for raising any alarm. The gun shot, according to PW-5, was fired by Jagga Singh from the distance 9 of about eight feet. PW-5 Major Singh also stated that he went to police station on motor-cycle and the accused persons came at the spot by a Suzuki, that was parked at about the distance of one bigha towards North. PW-5 Major Singh also stated that his cloths too received certain blood stains while taking care of his brother Heera Singh and he covered body of deceased Heera Singh with a cloth. PW-6 Gurdeep Singh was also cited as an eye-witness by the prosecution and as per this witness he went to village Kikarwali along with Mothu Singh at about 5.30 pm on 7.9.2002. On reaching at the shop of Mohan Singh, Heera Singh came there riding on a mare and that mare was to be taken by this witness. When Heera Singh stepped down from the mare, Mothu Singh gave him a slap and Jagga Singh gave a shot from fire arm on the chest of Heera Singh, consequent to that he died and the accused persons fled away from the spot. This witness also stated that the pistol was fired on Heera Singh from the distance of 7-8 feet and while firing accused Jagga Singh was standing in front of deceased Heera Singh. Learned counsel for the appellant on basis of the evidence discussed above urged before us that PW-9 Angrej Singh was declared hostile only to the extent that he denied running of Mothu Singh from the spot and rest of the narration made by him is in consistency with the 10 statement given by him as per provisions of Section 161 Cr.P.C. We are of the view that the statements of Angrej Singh, though he has been declared hostile, can be taken into consideration by the court to the extent those are not at all inconsistent with his version, given before the investigating agency as per provisions of Section 161 Cr.P.C. As per Angrej Singh (PW-9) he heard a sound of gunfire shot and on coming out he found dead body of Heera Singh lying there. This witness has not stated anything about presence of PW-5 Major Singh and PW-6 Gurdeep Singh. This witness also not said that Major Singh made a telephone from his shop giving information to Deedar Singh or to any body else regarding the incident. On the contrary as per this witness after seeing dead body, he closed and locked the shop and went with Yunus Ali to his residence. As such, presence of PW-5 and PW-6 at spot is not supported at least by this witness. PW-9 Angrej Singh is quite consistent in saying that he saw a white mare running from the spot of occurrence, though, the direction given before the court is Western and the same was referred as Southern before the investigating agency. PW-10 Ramdev Singh stated that the first information report was lodged on basis of the earlier statement (Ex.P/18) made by PW-5 Major Singh at police station – Sangaria. As per this witness when he reached 11 at the spot PW-5 Major Singh was not present there and he came subsequently. It is urged by learned counsel for the appellant that, as a matter of fact, PW-5 Major Singh and PW-6 Gurdeep Singh both were not present at the spot and they came to know about the incident only when the white mare reached at the residence of Deedar Singh without its rider Heera Singh (deceased). To substantiate the arguments aforesaid beside the statements of PW-9 Angrej Singh as discussed above and PW-10 Ramdev Singh, he has also submitted that Gurdeep Singh stated that he came to Kikarwali alongwith Major Singh but when his presence itself is doubtful then the presence of Grudeep Singh too is under clouds of suspicion. He has also pointed out that as per PW-6 Gurdeep Singh he signed several reports made by investigating agency at the spot, but as a matter of fact not a single document prepared by the investigating agency, produced before the court bears his signatures or discloses his presence at the spot. To substantiate the arguments he has further stated that as per PW-10, Gurdeep Singh came at the spot at about 8 pm, and as such, his presence is highly doubtful. Extending the argument it is further contended that when Gurdeep Singh was not present at the spot then the presence of PW-5 Major Singh too was not possible as according to Major Singh himself he reached at the spot on riding a motor-cycle owned by Gurdeep Singh. On consideration of the factual position aforesaid we are also 12 having reasonable doubt about presence of Gurdeep Singh and Major Singh at the spot. Angrej Singh (PW-9) was declared hostile by the court only to the extent of inconsistency occurring in his statement, that is relating to running of Mothu Singh from the spot. Other parts of the evidence given by him certainly deserves consideration. PW-9 Angrej Singh did not say anything about presence of Jagga Singh or his running from the spot and at the same time nothing is said by him about presence of PW-5 Majaor Singh and PW-6 Gurdeep Singh at spot. On the contrary, as per this witness at the time of occurrence of crime no one was present near to deadbody. This witness has also not said anything about making of call from his shop by PW-5 Major Singh. On the contrary this witness stated that he immediately closed and locked the shop and left the spot with Yunus Ali. PW-10 Ramdev Singh also stated that Gurdeep Singh came at the spot at about 8 pm. We also found on basis of the available evidence that the conduct of PW-5 Major Singh, if he was present at the spot as claimed by him was not as per normal human behaviour. He did not make any effort to take his brother for medical care, though as per his statements he was knowing several Doctors in village Kikarwali itself. As per this witness while taking care of his younger brother Heera Singh his cloths received certain blood stains but these cloths and also the cloth which is said to be placed on dead body of Heera Singh are not part of the record. 13 There are certain inconsistencies even in the statements of PW-5 Major Singh and PW-6 Gurdeep Singh. As per PW-6 Gurdeep Singh he alongwith Major Singh went to village Kikarwali to have certain domestic goods and before reaching to the shop of Mohan Singh they also visited 2-3 other shops. On the other hand, PW-5 gives totally a different version for visiting the village Kikarwali. As per this witness he went to village Kikarwali as Gurdeep Singh want to have mare which was taken by Heera Singh. This witness nowhere mentions that before coming to the shop of Major Singh he visited 2-3 other shops also. Contrary to the aforesaid, as per this witness he came to the shop of Major Singh only. In totality of the existing facts we are having reasonable doubt about presence of PW-5 and PW-6 at the spot. An another important aspect of the matter is that as per PW-10 the seized and recovered articles were sent for serological examination to the Forensic Science Laboratory under letter No.Pa- 17/Hanu/ApaSha/Parikshan/2002 364 dated 23.10.2002 (Ex.P/16), however, in the receipt given by the Forensic Science Laboratory the numbers of letter are shown as 893 dated 30.10.2002. The FSL Report given also relates to letter No.893 dated 30.10.2002. Learned Public Prosecutor as well as learned counsel for the complainant failed to give any explanation regarding change in numbers of the letter or regarding 14 the material sent for serological examination under the letter No. 893 dated 30.10.2002. On minute examination of record we also fail to get anything remitted to Forensic Science Laboratory from the office of Superintendent of Police, Hanumangarh under letter No.893 dated 30.10.2002. Beside the above, it is also important to note that the blank fire cartridge as per PW-10 was not fitting to the magazine of the pistol recovered at the instance of accused Jagga Singh. The cumulative effect of whatever discussed above is arising of a reasonable doubt relating to involvement of the present accused persons in the crime in question. At least on basis of the available evidence the absence of PW- 5 and PW-6 at spot at the time of occurrence is heavily under clouds. The remission of the seized and recovered articles to Forensic Science Laboratory from office of Superintendent of Police, Hanumangarh and also the fire arm said to be used for commission of crime are not sufficiently established to convict the appellants. Accordingly, this appeal deserves acceptance. The same is allowed. The judgment dated 19.1.2005 passed by the learned Addl. Sessions Judge, Nohar, District – Hanumangarh is set aside. The conviction of accused Jagga Singh under Section 302 IPC and Section 27 of the Arms Act and of accused Mothu Singh for offence under Section 15 302/34 IPC too are set aside. Consequently, the sentence awarded too is set aside and the appellants are acquitted from the charges levelled against them by extending benefit of doubt. The accused Jagga Singh be released from judicial custody forthwith, if not otherwise required. The accused Mothu Singh is already availing suspension of sentence in pursuant to the order dated 23.3.2005, thus, the bail bonds and sureties furnished by him are discharged. ( C.M.TOTLA ),J. ( GOVIND MATHUR ),J. jgoyal