1 IN THE HIGH COURT OF JUDICATUARE FOR RAJASTHAN AT JODHPUR. JUDGMENT Raja Singh vs. The State of Rajasthan D.B. Criminal Appeal No.486/2003 under Section 374(2), Cr.P.C. against the judgment dated 31.3.2003 passed by the learned Addl. Sessions Judge, Sangaria in Sessions Case No.23/2003(36/2001) Date of Judgment: April 30th ,2008. PRESENT HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. CHAND MAL TOTLA,J. Mr.Vinod Bhadoo for the appellant. Mr. V.R. Mehta,P.P. for the State. .. BY THE COURT( Per Hon'ble Mr.Tatia,J): This appeal has been preferred by the appellant Raja- against the judgment and order dated 31.3.2003 passed by the learned Addl. Sessions Judge, Sangaria in Sessions Case No.23/2003(36/2001) by which the court below convicted the appellant Raja Singh under Section 302 IPC and sentenced him to undergo life imprisonment with fine of Rs.1,000/- and 2 in default of payment of fine, to further undergo six months' rigorous imprisonment. As per the prosecution case, an oral report was given by PW-1 Tej Singh s/o Puran Singh, father of accused Raja Singh and deceased Jeet Singh on 26.5.2001 at 11 p.m.. This report was submitted in the presence of one Narendra Kumar Godara (PW-11) which was recorded as Ex.P.1. On the basis of this report, a case No.294/2001 was registered under Section 302, IPC. The complainant Tej Singh stated that he had two sons, Raja Singh and Jeet Singh. Raja Singh was living separate from him and his family members, whereas Jeet Singh was living with him. In between the houses of the complainant and the accused Raja Singh, there was a wall of 4 ft only. Raja Singh was also accused in a case of murder of complainant's brother Suba Singh, however, he was acquitted by the court from the charge of murder. Raja Singh and Jeet Singh had dispute for share in the complainant's plot. Raja Singh used to demand the share in the complainant's (father's) plot and insisting for raising a wall to separate the portion. The complainant, the father of accused Raja Singh told him that they may divide the plot after his and his wife's (mother of accused) death. It is 3 stated that because of that reason the quarrel was going on for long. On the unfortunate day, i.e. 26.5.2001 at about 8 p.m., Raja Singh again started quarreling for the same purpose. During this quarrel, the complainant said to Raja Singh that till I am alive, do not divide the portion. At that time, the complainant's another son Jeet Singh came on the spot and when Raja Singh started abusing then Jeet Singh went in the house of Raja Singh to stop him from abusing. The complainant and his wife immediately went to save Jeet Singh as Raja Singh caught Jeet Singh. Raja Singh, at that time, inflicted a grave injury on the chest of Jeet Singh by Gupti. Jeet Singh tried to move out from the house of Raja Singh and fell down in the lane of the house of the complainant and Raja Singh and Raja Singh ran away from the place of occurrence. The complainant and his wife started weeping, upon which the neighbours including complainant's uncle's son Mukand Singh and the cousin Sikandar Singh came on the spot. He told about the incident to those persons and sent for calling Sarpanch Mala Singh. He also told the Sarpanch about the incident. Thereafter, living Mukand Singh behind with the dead body, the complainant with Sarpanch Mala Singh, went to the police station for giving information to the police. After 4 registering the case, during investigation, the investigating officer PW-11 Narendra Kumar Godara, took the sample of soil from the spot vide Ex.P.2 and recovered the Chappal and turban of deceased from the spot and prepared seizure memo Ex.P.3. The deceased's clothes were also seized and seizure memo Ex.P.4 was drawn. The articles were put in a sealed cover. The site sketch map Ex.P.5 was prepared in the presence of the witnesses Mala Singh and Manphool and site report Ex.P.5A was also prepared. The statements of the witnesses were recorded, photos were taken of the site. Thereafter, Jeet Singh's body was sent for post-mortem, after preparing the memo for taking possession of the dead body in the presence of the witnesses. The post-mortem report was obtained. After 10 days, the accused Raja Singh was arrested on 5.6.2001. The accused gave information under Section 27, Evidence Act (Ex.P.6) and the Gupti was recovered from the iron-box of the accused-appellant which was lying in the house of the accused-appellant. The Gupti was blood stained and was sent for chemical examination to the FSL from where report was obtained. As per the FSL report (Ex.P.3), the blood soil, the deceased's chappal and turban, shirt and trouser and the Gupti, which were recovered from the accused had human 5 blood of Group-A. The charge-sheet was submitted against the accused before the concerned Magistrate, who committed the case to the court of Sessions. In the Sessions Court, the charge was framed under Section 302, IPC which was denied by the accused-appellant and the accused-appellant sought trial. The prosecution produced total 12 witnesses and exhibited 33 documents, reference of which has been given above and four articles were also produced, reference of which is given in the FSL report. The statement of accused under Section 313, Cr.P.C. was recorded wherein the accused stated that all the allegations are false and no recovery has been effected from him nor he gave any information under Section 27, Evidence Act for effecting recovery. He stated that he did not eliminate his brother. He also took specific stand that in fact the blood of the deceased was brought by the investigating officer in a bottle and he put the blood on the clothes of the appellant and the Gupti in question. The trial court after considering the evidence on record, held that the appellant is guilty of committing offence of murder and held him liable to be punished under Section 6 302,IPC vide impugned judgment dated 31.3.2003. Hence the appellant has preferred this appeal. The learned counsel for the appellant vehemently submitted that the witness PW-1 Tej Singh, complainant, the father of the victim and also father of the appellant, as well as deceased's wife Rani (PW-9) both were declared hostile and, therefore, in fact there is no evidence against the appellant. It is also stated that the witness who has been shown as witness to the recovery of the weapon of offence and clothes of the accused-appellant, did not support the prosecution case, rather supported the defence of the appellant-accused and he clearly stated that the investigating officer brought the sample of the deceased in a bottle and directed constable Ant Singh to put blood on the Gupti and pent and shirt of the appellant. This witness Manphool(PW-5) is not a hostile witness. The learned public prosecutor submitted that the portion of the statements of the witnesses who have been declared hostile which are trustworthy and can be believed and can be separated from other part of the evidence, then that can be very well considered and relied upon in favour of the prosecution case. It is not necessary that statement of 7 hostile witness is required to be discarded totally. The contention of the learned counsel for the appellant that the witness PW-9-Rani was declared hostile, is wrong. She (PW-9 Rani) in her statement clearly stated that Raja Singh Killed her husband in the house of Raja Singh by inflicting injuries on the chest of the deceased-her husband and her husband fell down near the door of his house and died there. She in her re- examination made it clear that she herself saw her Jeth (husband's elder brother) killing her husband. It is also submitted that the allegation of putting blood on the clothes and the Gupti which was recovered from the appellant by the investigating officer, on the face of it, is false as no reason and enmity of the investigating officer with the accused has been shown by the accused. It appears that the prosecution witness PW-5 Manphool was won-over by the defence and, therefore, in examination-in-chief he supported the prosecution case so that he may not be declared hostile and thereafter, he in cross-examination, supported the defence taken by the accused. His statement given in cross- examination deserves to be rejected and his statement given in the examination-in-chief fully proves the case of the prosecution. It is also submitted that the blood on the clothes 8 of the appellant as well as on the Gupti was of the deceased, stands admitted by the accused-appellant himself though with a different plea which is liable to be rejected. Therefore, the prosecution case stands fully proved from the even defence taken by the accused, which fully supports the prosecution case. We considered the submissions of the learned counsel for the parties and perused the record. The report Ex.P.1 was said to have been submitted by the victim and accused's father Tej Singh. He admitted that he gave report Ex.P.1 in the police station, however, he denied that he gave name of Raja Singh in that information. But so far as his going to the police station immediately after the incident, has been admitted by the hostile witness PW-1 Tej Singh, who happens to be the father of both, the victim and the accused. He had two sons only. One died and another is behind bar. Therefore, there is no reason to believe that whatever written in Ex.P.1 at the instance of PW-1 Tej Singh, was not written rightly and his denying the correctness of Ex.P.1 appears to be afterthought. In cross-examination, he either shown ignorance or denied the recovery and seizure of the blood stained clothes of the appellants. In his statement, 9 he denined taking of soil from the spot in his presence but admitted his signatures on the memos Ex.P.1 and Ex.P.4. He also admitted his signatures on the site map Ex.P.5. PW-1 Tej Singh even denied his statement which was recorded under Section 161, Cr.P.C. In the same way, he denied other events but admitted the reports prepared for taking possession of the dead body of the deceased. PW-2 Mala Singh was also declared hostile but in examination-in-chief, he stated that immediately after the incident, Mukand Singh and Sikandar Singh came to him and told him that fight occurred between Raja Singh and Jeet Singh, however, he denied that they told him that Raja Singh killed Jeet Singh by knife. In cross- examination, he admitted that he went with Tej Singh for lodging FIR, however, he stated that he remained out side (police station). He also denied his signatures on the FIR Ex.P.1. However, he admitted the documents Ex.P.2 and Ex.P.13, memos prepared by the police during investigation but he stated that those documents were not prepared in his presence. Therefore, the prosecution case that Ex.P.1 was given by the appellant and victim''s father Tej Singh is proved by the statements of PW-1 Tej Singh and PW-2 Mala Singh. PW-3 Mukand Singh and PW-4 Sikandar Singh both were not 10 declared hostile and PW-5 Manphool, in his examination-in- chief, admitted that the soil was taken in possession and seizure memo was prepared by the police in his presence and he signed the said seizure memo Ex.P.2. He also proved that Chappal and turban were also seized in his presence and he signed seizure memo Ex.P.3 and further admitted that the accused's clothes were recovered and seized and seizure memo Ex.P. 4 was prepared and he signed the said documents and he also proved the site map Ex.P.5 and admitted his signatures on the said document and further admitted Ex.P.8, the memo of taking photos. He is also witness to the panchnama Ex.P.10, sealing of the samples of soil Ex.P.11, Ex.P.12 and Ex.P.13. He is also witness to arrest of the accused appellant Raja Singh as he admitted the arrest memo Ex.P.17 and his signatures over that. He is also witness to recover of Gupti and admitted his signatures on the recovery memo Ex.P.18 and witness to the recovery of appellant's pent and shirt vide Ex.P.19. After supporting the prosecution case fully, he in cross-examination, stated that the SHO concerned brought the blood of the deceased in bottle and directed one constable Ant Singh to pour blood on the Gupti and on the clothes of the appellant. This part of the statement of witness 11 PW-5 Manphool finds support from no evidence except the stand by the accused-appellant in the cross-examination. This plea has been denied by the investigating officer. No reason has been shown why an independent witness will involve an innocent person in a heinous act of crime of murder by his own brother. The conduct of PW-5 Manphool is self-speaking. He says that the blood was poured on the clothes of the appellants and the alleged weapon of offence, then why he became party to that event by signing relevant document of recovery implicating the appellant in the crime. Therefore, it appears that PW-5's statement levelling allegations against the investigating officer and manipulating the things appears to be nothing but an afterthought and appears to be given in cross-examination so that he can fully support the defence. There is every possibility that he was won-over by the accused-appellant. The dead body was examined by Dr.Sushila Choudhary and she proved the post-mortem report Ex.P.25. Nothing came out from the cross-examination so as to question the examination of the body of deceased by Dr. Sushila Choudhary (PW-7). PW-9 Rani in her examination-in-chief clearly stated that 12 there was dispute between Raja Singh and Jeet Singh, husband of witness PW-9 Rani. She stated that her husband was inflicted injuries on the chest because of which he fell down near the gate of the house and died. She also stated that Raja Singh killed Jeet Singh in the house of Raja Singh. PW-8 Bhan Singh was the investigating officer and he recovered the weapon of offence from the iron-box of the appellant from his house as well as blood stained clothes of the appellant. Apart from above, the accused was arrested after 10 days, which clearly proves the fact that he ran away after the incident only, as stated by PW-9 Rani that the person who killed her husband ran away. There is no explanation by the accused why he did not come in the house for 10 days when his brother was murdered. Therefore, his conduct was rightly considered by the trial court as the circumstance to support the prosecution case. In view of the above reasons, so far as the finding of the trial court that the victim Jeet Singh died due to the injuries inflicted by his brother Raja Singh is concerned, that finding is upheld. However, the matter is required to be considered 13 whether the conviction of the appellant under Section 302, IPC is justified or he should have been convicted under Section 304 Part I or Part II IPC. The learned counsel for the appellant vehemently submitted that it is a case of sudden fight and there could not have been any predetermination of the appellant for killing of the victim Jeet Singh. It is also submitted that as per the prosecution's own case, there was some dispute with respect to the property of the father of appellant victim and in that dispute some altercation was going on between Jeet Singh and his father and during that period, Jeet Singh came in the house unknowing about the altercations between the appellant and his father and it appears that in that, because of language used by appellant, Jeet Singh victim over-reacted and jumped in the house of the appellant and the appellant, out of fear and to save himself, might have tried to threaten Jeet Singh and in that he might have used the weapon of offence. In view of the above facts and in view of the fact that the victim died because of injury no.5 which was on the chest of the victim, the appellant could have been convicted only under Section 304 Part II, IPC and not under Section 302, IPC as there was no intention of the appellant and there could not have been any reason for killing 14 of victim Jeet Singh by the appellant, who is brother of the victim. We considered the submissions of the learned counsel for the appellant on this aspect of the matter. Undisputedly, the prosecution's own case is that the verbal altercations were going on between the appellant and his father and at that time Jeet Singh was not present. The details of the conversations between Tej Singh and the appellant are mentioned in the information submitted by Tej Singh himself in the same night in the Police Station in the night in which the incident occurred. Tej Singh himself mentioned in the FIR that Jeet Singh jumped over the wall separating house of two brothers Jeet Singh and Raja Singh, because of the reason that Raja Singh started using filthy language against appellants and his own father. In that spur of moment, there is possibility that Raja Singh, out of fear because of jumping of Jeet Singh in the house of the appellant, used the weapon of offence. In the backdrop of these facts, it may not have been intention of Raja Singh to cause death of the victim Jeet Singh but he was knowing it well that the injuries caused by him would likely to cause the death. The case of the appellant does not fall in any of the categories described under Section 15 300, IPC,therefore, the case of the appellant falls in the Part I of Section 304, IPC, as from the facts, it is proved that the appellant has caused bodily injury to Jeet Singh victim which was likely to cause death. In view of the above discussion, the appeal of the appellant is partly allowed. The conviction and sentence of the appellant under Section 302, IPC are set aside. The conviction is altered to under Section 304 Part I, IPC. The appellant is sentenced to undergo imprisonment of term of ten years and a fine of Rs.1000/- is imposed and in default of which the appellant shall undergo six months' rigorous imprisonment. ( CHAND MAL TOTLA) ,J. (PRAKASH TATIA),J. mlt