DBCr. Appeal No.326/1982 Bhimla @ Bhinya Ram & Ors. Vs. State [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR **** :JUDGMENT: Bhimla @ Bhinya Ram & Ors Vs. State of Rajasthan **** D.B. CR. APPEAL NO.326/1982 AGAINST THE JUDGMENT AND ORDER DATED 11.8.1982 PASSED BY LEARNED ADDL. DISTRICT & SESSIONS JUDGE, SRI GANGANAGAR IN SESSIONS CASE NO.9/81 <><><> Date of Order : 4th September, 2008 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE C.M. TOTLA Mr.MK Garg, for the appellants. Mr.JPS Choudhary, Public Prosecutor. BY THE COURT: (Per Hon'ble Mr. Justice Prakash Tatia) This appeal is against the judgment and order passed by the learned Sessions Judge in Sessions Case No.9/81 dated 11.8.1982 by which the learned court below convicted three appellants Bhimla @ Bhinya Ram, Hanuman and Ram Swaroop for offence under Section 302/34 and 307/34 IPC and also under Section 25(1)(k) of the Arms Act. All the accused have been sentenced to undergo life DBCr. Appeal No.326/1982 Bhimla @ Bhinya Ram & Ors. Vs. State [2] imprisonment for offence under Section 302/34 IPC, seven years RI, for charge under Section 307/34 IPC with fine of Rs.100/-on each and in default thereof to undergo 15 days RI. The appellants have been sentenced to undergo two years RI for charge under Section 25(1)(k) of the Arms Act. Sentences are made to run concurrently. Total 13 accused were before the trial court, but rest of the 10 have been acquitted, therefore, three appellants have preferred this appeal. Background for the dispute as per the appellants is that accused party had agricultural land in the State of Haryana whereas the complainant's party had land at Padampur in District Sri Ganganagar of Rajasthan. The accused party and complainant party entered into an agreement for exchange of their lands and furtherance to that the appellants accused party gave their land of Haryana to complainant party and complainant party is in possession of the said Haryana land. The accused party was given possession of the land at village Padampur of Ganganagar District, but the complainant party wanted to again take possession of the property of Padampur from the accused party. In that sequence, first incident occurred on 31st May, 1980. In that appellants party's Sada Sukh and DBCr. Appeal No.326/1982 Bhimla @ Bhinya Ram & Ors. Vs. State [3] Devi Lal were murdered by the complainant party, upon which, challan was filed against three principal accused Mukhtiyar Singh, Malkiyat Singh and Gurdeep Singh for offences under Sections 302 and 302/34 IPC. All above three persons of complainant party Mukhtiyar Singh, Malkiyat Singh and Gurudeep Singh were convicted by the trial court for offence under Section 302 and 302/34 IPC. However, the complainant party's Mukhtiyar Singh and Malkiyat Singh were acquitted by the High Court in appeal whereas conviction of Gurudeep Singh was maintained and according to learned counsel for the appellants, Gurudeep Singh served sentence of 15 years and by now he also has been released. Before this incident occurred in the evening of 18th Oct., 1980 for which present case was registered in the morning of 18th Oct., 1980 itself at 7.30 or 8.00 AM the accused-appellants' party's Tahal Singh was murdered. In the same evening i.e., on 18th July, 1980 in another incident complainant party's Mastan Singh was killed and because of this, after investigation, challan was filed against the present appellants as well as seven other persons in the trial court. According to learned counsel for the appellants accused party's one person Hansraj also died in the DBCr. Appeal No.326/1982 Bhimla @ Bhinya Ram & Ors. Vs. State [4] incident, but police did not record appellants accused party's report for murder of Hansraj by the members of the present complainant party. However, according to learned counsel for the appellants, PW-11 Modan Singh in his statement in the trial court in the present case admitted that he fired upon Hansraj Singh who suffered injuries and postmortem report of Hansraj Singh has been submitted by the prosecution in this case and doctor also gave his statement which clearly proved that Hansraj Singh died because of gun shot injuries and evidence on record proved that his body was found near the area where the complainant party's Mastan Singh died. The police instead of registering a case against the culprits who committed murder of Hans Raj Singh filed challan against the accused who were not present on spot where the Mastan Singh was murdered. In view of the above, according to learned counsel for the appellants, in fact, appellants party's three persons Sada Sukh, Devi Lal and Hansraj Singh died whereas in one incident, one of the person of the complainant party Mastan Singh died and one injured. He also submitted that before present incident, the appellants had reasonable fear for their life and, therefore, appellants sought police protection DBCr. Appeal No.326/1982 Bhimla @ Bhinya Ram & Ors. Vs. State [5] and by the order of the Government, two guards were put for security of the appellants-accused party and those guards were Hari Ram and Ishar Singh, who were produced by the prosecution as PW-1 and PW-2 as prosecution witnesses. In the present incident, in which Mastan Singh died, the prosecution suppressed true story, which is fully proved from the fact that appellants party's one man Hansraj Singh died because of injury inflicted by complainant party's Modan Singh. The prosecution witness PW-11 Modan Singh himself admitted this fact and the prosecution itself proved the fact of death of Hansraj Singh by producing postmortem report of Hansraj Singh and which has been proved by the doctor PW-7 Satish Kumar Gupta, the same doctor who conducted postmortem for the complainant party's victim deceased Mastan Singh. Not only this, the prosecution own witness PW-7 Dr. Satish Kumar Gupta in cross-examination clearly stated that victim complainant party's Mastan Singh suffered gun shot injuries, but the injuries individually or collectively were not sufficient to cause death in ordinary course of nature. Further, the prosecution witness PW-7 Dr. Satish Kumar Gupta clearly stated that cause of death was Neuro circula long failure leading to shock, which in the opinion of the DBCr. Appeal No.326/1982 Bhimla @ Bhinya Ram & Ors. Vs. State [6] doctor “probably due to gun shot wound” and in cross- examination, the prosecution witness Dr. Gupta admitted that Mastan Singh died “due to the neurogenic shock which resulted from the fear of gun shot wound. androgenic shock may occur due to any strong fear even without receiving any injury.” Therefore, from prosecution own evidence, it is proved that victim Mastan Singh did not die because of injury inflicted to him by any gun, but he died because of fear only for which victim may have strong feeling of fear that he may die due to gun shot injury and injury itself in the present case, was not sufficient to cause death individually or collectively. According to learned counsel for the appellants, the prosecution witness, the ballistic expert PW-19 Roop Singh clearly stated that cartridges (c/7 and c/12) of parcel no.Q and V-1 respectively have been fired from the right barrel of the 12 bore BBBL gun (w/1) of parcel no.V. The other one 12 bore fired cartridge case (c/8 of parcel no.Q) had been fired from the left barrel of the 12 bore DBBL gun (w/1 of parcel no.V). According to learned counsel for the appellants no double barrel 12 bore gun was recovered from any of the accused. The recovery of gun from accused Hanuman in pursuance of the information under Section 27 of the DBCr. Appeal No.326/1982 Bhimla @ Bhinya Ram & Ors. Vs. State [7] Evidence Act (Ex.P/67) vide recovery memo Ex.p/62 evidences recovery of 12 bore gun and not 12 bore double barrel gun. The recovery from Ram Swroop vide information Ex.p/31 and vide recovery memo Ex.P/32 is of one 303 single barrel pistol, two live cartridges and recovery from Bhiya Ram vide information Ex.P/73 and recovery memo Ex.P/74 is also of 12 bore gun and not 12 bore double barrel gun, the pistol 303 with one live cartridge of 303 and two cartridges of 12 bore gun was recovered. In view of the above, the alleged recovered weapons are not having any connection with the injuries, which have been suffered by the victim and there is no allegation that the appellants had any 12 bore double barrel gun with them. In view of the above, the appellants cannot have any connection with the crime and prosecution has deliberately suppressed the true facts and falsely implicated the appellants. Learned counsel for the appellants submitted that the complainant party as well as prosecution impleaded seven innocent persons for committing offence under Section 302 and 302/34 IPC and, therefore, it is clear that the prosecution had no faith in disclosing the true facts to the court. Learned counsel for the appellants further DBCr. Appeal No.326/1982 Bhimla @ Bhinya Ram & Ors. Vs. State [8] vehemently submitted that there could not have been any reason for not lunching prosecution by the State for commission of offence of murder of Hansraj Singh by the complainant party. That demonstrates the strong feeling of the prosecution agency against the appellants. Learned counsel for the appellants submitted that the statement of prosecution witnesses PW-12 Sarjeet Kaur who is complainant, PW-13 Nakshtra Singh who is injured and PW-11 Modan Singh are absolutely un-reliable. Learned counsel for the appellants vehemently submitted that the prosecution not only suppressed this material fact that Hansraj Singh died in the same incident due to injury inflicted by fire arm, but in fact, it appears that Hansraj Singh alone was present on the spot and who may have fired upon the deceased Mastan Singh and may have caused injury to Karnail Singh and the complainant party counter fired upon Hansraj Singh and killed Hansraj Singh and because of enmity the appellants and others and because of death of Hans Raj Singh got the opportunity to implicate appellants and implicated appellants absolutely falsely in the present case, whereas they were not present at the place of occurrence. In the alternative, learned counsel for the appellant vehemently submitted that it is DBCr. Appeal No.326/1982 Bhimla @ Bhinya Ram & Ors. Vs. State [9] clear from the prosecution evidence that victim did not suffer any injury from any alleged weapons which have been recovered from any of the appellants and that also clearly suggest that the victim died and suffered injuries by the other weapon which was with Hansraj Singh. Learned Public Prosecution vehemently submitted that there are trustworthy evidence on record given by the eye witness like PW-12 Smt. Sarjeet Kaur and there is no reason for her to give false statement and there is direct evidence of PW-11 Modan Singh and PW-16 Karnail Singh. They have been thoroughly cross-examined by the defence, but their testimony has not been shattered. The death of Mastan Singh because of injuries he suffered by fire arms is proved and it is also submitted that even if Mastan Singh died because of shock or fear of injury even then he died because of the injury itself. The intention of the accused was very clear as they fired several shots and inflicted injuries upon the victims. The manner in which the victims were attacked and looking to the background of the accused, it is clear that they followed the complainant party's persons with clear intention to kill them. In view of the above reasons, the trial court rightly convicted the appellants. It is also submitted that it is true that 12 bore DBCr. Appeal No.326/1982 Bhimla @ Bhinya Ram & Ors. Vs. State [10] barrel guns were recovered from the three accused but from the evidence of PW-19 inference cannot be drawn that the fire was not from the weapon of the accused-persons. We considered the submissions of learned counsel for the appellants and learned Public Prosecutor and perused the record. A oral Parcha Bayan Ex.P/27 was given by Smt. Sarjeet Kuar PW-12 to the PW-17 Laxman Singh on 18th July, 1980 at Dhani of Jhangir Singh in village Ridmalsar where, in a jeep, body of deceased Mastan Singh was lying. In Parcha Bayan Ex.P/27 complainant Smt. Sarjeet Kaur stated that in the morning (on 18th July, 1980) at 9.00 AM one Surjaram, partner of the Gurdayal Singh (Fauji) came running towards her house and told her that Kesra, Krishna, Bhimla etc fired upon Chhinda Singh to kill him and they were running after Chhinda Singh. Kesra etc told Chhinda Singh that they have also killed four persons and now they will not spare him. At that time, Trilok Singh and Nima Singh were sitting in the house of complainant Sarjeet Kaur who came out from her house and found that near Bhiwla Ki Dhani, Bhiwla, Hanuman, Odmal, Krishna Keshra etc were there and they had guns in their hands. They were shouting and were saying that we have killed your four DBCr. Appeal No.326/1982 Bhimla @ Bhinya Ram & Ors. Vs. State [11] persons near 78 LNP (agricultural field). Hearing this, complainant in the in the tractor of Gurdayal singh with her husband's younger brother's wife Naseeb Kaur with Balvendra Singh,Dayal Singh, Trilok Singh and Nakshtra Singh started for going to chack 78 LNP. One police guard (who was posted for complainant's protection) was also accompanied them. When they reached to the chack 78 LNP and inquired then Bhiwla etc stopped one bus and killed four persons of complainant's party. They found that their relative Tahal singh was lying dead in chack no.78 LNP, who suffered gun shot injuries in his back. The complainant left Dayal Singh there and started for Ridmalsar village. At Ridmalsar they left the tractor and took a jeep on rent to go to CC head (the canal head). From there they took Trilok Singh, Nakshtra Singh and Naseem Kaur in the jeep to see the victims at Ganganagar hospital. However, the complainant Sarjeet Kaur's husband who was in custody in another case had Peshi in the court, therefore, she alone started for Padampur to meet his husband. Gurdeep Singh was at Padampur bus station. She saw accused Hanuman, Ram Swaroop and Bhimla with Hansraj Singh in a jeep. After some time complainant Sarjeet Kaur husband's younger brother Mohan singh and DBCr. Appeal No.326/1982 Bhimla @ Bhinya Ram & Ors. Vs. State [12] Sukhdev Singh also reached to Padampur and they also took a jeep on rent for going to the CC head. At CC head, complainant's other relatives Mastan Singh, Karnail Singh and Jagtar singh, Harnek Singh, Buta Singh, Gurnam Singh, Gurcharan Singh and Kartar Singh were there. They all taken into jeep for going to Ridmalsar. At about 5.30 PM they reached to Ridmalsar. At Ridmalsar when in fact they stopped their jeep, in another jeep Hanuman and other accused Hansraj Singh, Bhimla and Ram Swaroop etc came behind them. Seeing these accused persons, the complainant party started their jeep for going to Jahangir Singh's Dhani. They reached to Jahangir Singh's Dhani and some of the complainant party's persons dropped down from the jeep to take water from the Dhani than the accused party's jeep reached near the jeep of the complainant party wherein total four persons including complainant were sitting. At this place and time, the accused party's started firing in which complainant's uncle- in-law Mastan Singh who was siting in the back seat of the jeep died and complainant's husband's brother Karnail Singh was injured. The complainant stated that they hide themselves in nearby area. Thereafter, complainant stated that all accused Bhimla, Hanuman, Hansraj and Ram DBCr. Appeal No.326/1982 Bhimla @ Bhinya Ram & Ors. Vs. State [13] Swaroop ran in their jeep towards the western side and at that point, Jahagir Singh and his two daughter-in-law were present on the spot. The said report Ex.P/27 was sent to the Police Station Gumadwali, upon which, formal FIR Ex.P/28 was registered. The Parcha Bayan Ex.P/27 bears the thumb impression of Sarjeet Kaur as well as of signature of Laxman Singh, ASI PW-17. From spot, one empty cartridge 303 was recovered and recovery memo Ex.P/35 was drawn, one charger with blood stained was found which was also seized and seizure memo Ex.P/37 was prepared. In addition to the above, two empty cartridges of 12 bore gun, 2 cover of plastic of 12 bore cartridge, one empty cartridge of 12 bore gun of plastic, one empty cartridge of 12 bore dart, one empty cover of cartridge of 303 pistol, 2 live cartridges of 303 pistol were recovered and their seizure memos Ex.P/38 to P/42 were prepared. The sample of plain soil and blood soil from different places from the spot were seized and seizure memos Ex.P/43, P/44 and P/45 were prepared. From spot, one pair of Chappal , one cotton turban were also seized and seizure memos Ex.P/46 and P/47 were prepared. From the Jeep No.RRJ 9477 which was lying on the road, body of Hansraj Singh S/o Lalu (referred above) DBCr. Appeal No.326/1982 Bhimla @ Bhinya Ram & Ors. Vs. State [14] was recovered from Chak Lalewala (59 LNP). The jeep was seized vide seizure memo Ex.P/49. In the jeep in which body of Hansraj Singh was found, one Barchhi, two empty bottles of liquor, one Jerricon of 5 liters with liquor smell were also seized. The hood of another jeep i.e., jeep no.TUU 1791 was seized and over which marks were put by the Investigating Officer identifying six sprinters marks and this hood was seized and seizure memo Ex.P/50 was prepared. At Dispensary Ridmalsar injured Karnail Singh's blood stained cloths, one turban, one Baniyan, one shirt and one bed sheet were taken in custody and seizure memo Ex.P/51 was prepared. The cloths of Mastan Singh were also seized and seizure memo Ex.P/54 was prepared. Panchnamas for the body of Mastan Singh Ex.P/52 and Hansraj Singh Ex.P/56 were prepared. Deceased Hansraj Singh's cloths were also seized and seizure memo Ex.P/58 was also prepared. In pursuance of the information under Section 27 of the Evidence Act of appellant Hanuman Ex.P/61, one 12 bore gun, two live cartridges of 12 bore gun and licence of the gun of Hanuman were recovered vide recovery memo Ex.P/63. On the basis of information under Section 27 of the Evidence Act Ex.P/31 given by Ram Swaroop one 303 DBCr. Appeal No.326/1982 Bhimla @ Bhinya Ram & Ors. Vs. State [15] single barrel pistol and two live cartridges of 303 single barrel pistol were recovered by recovery memo Ex.P/32. From Bhimla @ Bhiya Ram on his information Ex.P/73 one 12 bore gun, 1 303 pistol, 2 live cartridges of 12 bore gun and one live cartridge of 303 pistol were recovered vide recovery memo Ex.P/74. Postmortem report of the deceased Mastan Singh and Hansraj Singh and injury report of Karnail Singh were obtained. The ballistic expert's opinion and FSL reports for the articles were also obtained. Charges were framed against all the accused including the appellants, which were denied by the appellants and other accused and the accused sought trial. The prosecution produced 19 witnesses and the documents referred above with all other relevant documents in the court alongwith challan. The statements of appellants and other accused were recorded under Section 313 Cr.P.C. These three appellants denied their involvement and stated that false allegations have been levelled against them. They stated that witnesses are member of the rival party and, therefore, they gave false statement. The trial court vide impugned judgment held that police guards PW-1 Hari Ram and PW-2 Ishar Singh DBCr. Appeal No.326/1982 Bhimla @ Bhinya Ram & Ors. Vs. State [16] appointed for the safety of the complainant party are not reliable witnesses. Their conduct was not found befitting to their post. The evidence of these two witnesses PW-1 Hari Ram and PW-2 Ishar Singh were recorded after they were removed from the place of complainant party's residence after four days from the time of incident. The trial court held that there was no reason for recording statements of these two important witnesses after such a delay and from the statements which they gave in court, the court found that they are absolutely un-reliable witnesses. It will be worthwhile to mention here that the trial court also held that accused Hansraj Singh died in the same incident but rejected the defence contention that Hansraj Singh might have caused the injuries upon the deceased Mastan Singh and may have caused injury upon Karnail Singh. We may recapitulate here that first report which alleged to have been given on spot by the complainant PW- 12 Smt. Sarjeet Kaur is most relevant. In this Parcha Bayan report Ex.P/27 complainant Sarjeet Kaur stated that Hansraj Singh who was with aggressors and who came in the jeep, after firing upon the complainant party and killing one of the member of the complainant party and injuring other ran from the spot in the jeep alongwith other DBCr. Appeal No.326/1982 Bhimla @ Bhinya Ram & Ors. Vs. State [17] accused. Contrary to this, the prosecution witnesses and particularly, witness Modan Singh PW-11 in his cross- examination admitted that to save themselves, they (complainants) fired upon accused party and in that firing victim Hansraj Singh suffered injury who was found dead by the Investigating Officer himself in the jeep of the accused party and not far away from the place where victim Mastan Singh also died due to gun shot injuries or fear of gun injuries. In cross-examination, he stated that Karnail Singh and Mastan Singh did not fire towards Hansraj Singh. He tried to suppress the fact of counter firing by other over the person who attacked upon them (upon the complainant party). Then not disclosing of how Hansraj Singh died by the prosecution witnesses causes serious doubt on prosecution story and it appears that real cause was suppressed by the complainant and her witnesses and the prosecution did not investigate genesis in which Hansraj Singh was murdered. If the prosecution investigated, then the true facts have been suppressed by the prosecution from the court. There appears to be no reason for prosecution to suppress this important material fact of murder of one person of accused party who died in the same incident, then there is possibility that Hans Raj Singh DBCr. Appeal No.326/1982 Bhimla @ Bhinya Ram & Ors. Vs. State [18] might have fired upon complaint party's jeep and because of that victim Mastan Singh has died. Further more, as per the evidence of the PW-19 ballistic expert Roop Singh, the cartridges were fired and hit victims of complainant party came from 12 bore “double barrel gun” and the recovery from these appellants were of “single barrel 12 bore gun” only. Then there is possibility that complainant party may have been attacked by a person who had 12 bore double barrel gun. Hansraj Singh's presence on spot alongwith the aggressors is admitted fact by the complainant and by the complainant's persons who have produced as witnesses then there is possibility that Hansraj Singh may had 12 bore double barrel gun and that possibility cannot be ruled out looking to the totality of the evidence referred above. In the background of these facts, the enmity between the two parties may be ground for court to examine the testimony of prosecution witnesses with more caution and there is possibility and weight in the arguments of learned counsel for the appellants that since Hansraj Singh already died in the incident, who might have inflicted injuries upon the deceased Mastan Singh and Karnail Singh then the complainant party due to enmity levelled false allegations DBCr. Appeal No.326/1982 Bhimla @ Bhinya Ram & Ors. Vs. State [19] against the three appellants who were not present on spot. In addition to the above, we found from the judgment of the trial court that, the trial court even after holding that Hansraj Singh was present at the time of incident and suffered injury in the same incident and died there then