1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ---------------------------------------------- CRIMINAL APPEAL No. 227 of 1984 STATE V/S MUNSHI SINGH Mr. K.R. BISHNOI, PP, for the appellant State. Mr. HSS KHARLIA, for the respondents Date of Judgment : 16.4.2009 HON'BLE SHRI AM KAPADIA,J. HON'BLE SHRI DEO NARAYAN THANVI,J. JUDGMENT REPORTABLE BY THE COURT(PER HON'BLE MR. A.M. KAPADIA, J): 1. The acquittal of the respondents original accused No.1 to 4 Munshi Singh, Surjeet Singh alias Leela Singh, Mewa Singh, Deva Singh alias Baldev Singh (A-1 to A-4) of the offences punishable under Sections 302, 307, 120B & 34 of the Indian Penal Code ('IPC' for short) recorded by the learned Sessions Judge, Sri Ganganagar vide judgment and order dated 18.01.1984 in Sessions Case No. 53 of 1983 is the subject matter of challenge in the instant appeal which is filed under Section 378 of the Code 2 of Criminal Procedure (‘the Code’, for short) by the appellant State of Rajasthan. 2. The facts emerging from the record of the case and more particularly as disclosed in the FIR and unfolded during the trial are as under: 2.1 On 10.06.1983, PW1 Hardeep Singh s/o Mukand Singh, by caste Jat Sikh, gave an oral report at Police Station, Sadar, Sri Ganganagar, wherein he inter-alia stated that at about 11-12 Noon, when he was in the shop on cotton carding machine and his father Mukand Singh was standing outside shop in front of the machine, at that time Surjeet Singh armed with Sela, Mewa Singh & Deva Singh with Gandasi, Munshi Singh having Sela, Chidi Singh (brother-in-law of Surjeet) and Phula Singh with Sela, came there and caused injuries to his father Mukand Singh by Selas and Gandasis with the intention to kill him and when they made hue and cry, his brother Gurdeep Singh, Lal Singh and Patwari Ram came on spot. Surjeet Singh inflicted injury with Sela to his brother Gurdeep Singh with 3 intention to kill him and then all these persons left the place thinking that his father had expired. Thereafter, Lal Singh and Patwari Ram taken his father and brother to hospital in tractor but on the way his father died on account of the injuries received by him and his brother was got admitted in the hospital. 2.2 The aforesaid complaint was registered vide FIR No.125 of 1983 at Police Station Sadar, Sri Ganganagar against six persons named therein. The motive for the incident was that deceased Mukand Singh had two sons; one Hardeep Singh (PW1) and another Gurdeep Singh alias Gurdev Singh (PW2). The second son i.e. Gurdeep Singh had gone in adoption to Hakim Singh, the brother of deceased Mukand Singh. Munshi Singh had forcibly occupied the agricultural land belonging to said Hakim Singh and also managed to get the mutation done in his name due to which, there had been litigation between Gurdeep Singh and Munshi Singh. On account of this, Munshi Singh and his three sons; namely, accused Mewa Singh, 4 Leela Singh and Deva Singh were annoyed with him while deceased Mukand Singh deceased used to help Gurdeep Singh. 2.3 On registering the FIR, investigation was put into motion and during the course of investigation, Chief Judicial Magistrate, Sri Ganganagar ordered the Judicial Magistrate to record dying declaration of injured Gurdeep Singh. Thereafter, investigation was taken over by the Incharge Police Station from ASI, who inspected the place of occurrence at the instance Hardeep Singh and prepared Ex.P/1 & P/2. He found there blood and also found one pair of Juti, glass of a watch, ring and an axe. All these articles were taken into possession and sealed. He also took in possession and sealed the sample soil and prepared Ex.P/3. Thereafter, he returned to hospital and after inspecting the dead body of Mukand Singh, he prepared Inquest Report Ex.P/4 and Panchayatnama Ex.P/14 and thereafter sent the dead body of Mukund Singh for postmortem examination. 5 2.4 PW3 Dr. Rajendra Kumar Gupta conducted the postmortem examination on the dead body of deceased Mukand Singh and prepared report which is on record as Ex.P/12. He also examined the injuries on the body of Gurdeep Singh and prepared Injury Certificate Ex.P/11. 2.5 On completion of investigation, as sufficient incriminating evidence was found only against four accused persons, chargesheet was filed against four accused persons in the Court of the learned Munsif & Judicial Magistrate, 1st Class, Sri Ganganagar for the offence under Sec. 302, 307/34 and 120-B IPC. 2.6 As the offence punishable under Section 302 of the IPC is exclusively triable by a Court of Sessions, the learned Munsif & Judicial Magistrate, committed the case for trial to the Court of Sessions at Sri Ganganagar (for short, ‘trial Court’, hereinafter). 6 2.7 The trial Court, framed charge against the accused Munshi Singh and Leela Singh for commission of the offence punishable under Sections 302 IPC, in alternate 302/34, 307, 326/34, and against Devi Singh and Mewa Singh under Sections 302/34, 307, 326/34, which was read over and explained to the accused. The accused pleaded not guilty to the same and claimed to be tried, therefore, they were put to trial. 2.8 To prove the culpability of the accused, prosecution has examined as many as 8 witnesses including two eye witnesses i.e. PW1 Hardeep Singh and PW2 Gurdeep Singh and relied upon their oral testimony. To prove the charge leveled against accused persons, the prosecution also produced in all 33 documents and relied upon the contents of the same. 2.9 After recording of the evidence of the prosecution witnesses was over, the trial Court recorded further statements of the accused as required under Section 313 of the Code wherein the 7 accused denied the prosecution case and stated that a false case has been filed against them and put up the case of self defence. It is stated that Munshi Singh, accused No.1 caused injuries to deceased Mukund Singh in his private defence as the deceased was aggressor. Accused No.1 in his further statement has stated that at the time of incident, he was going to take care of his land and was having with him Sela and while he was passing in front of the flour mill of Mukand Singh, Mukand Singh came from behind and caught hold of him and in that process, his wrist watch's glass, ring and hand of seconds fell there. Mukund Singh brought an axe from nearby flour mill and ran towards him to kill him so he frightened ran from there but Mukund Singh reached near to him and was about 15 pawands and blown axe on him and in defence he inflicted injuries to him. On giving axe blow by Mukund Singh, his Sela broke and the groove of Sela fell down. He gave blows by the stick of Sela to Mukund Singh in his defence and by then Gurdeep Singh came there, who tried to snatch the stick of 8 Sela from him and caught hold of it so he gave blow of the groove on Gurdeep Singh. During this, the axe of Mukand Singh fell on the spot and he himself fell down while going towards the side of his house. Surjeet Singh, Deva Singh and Mewa Singh were not there. Hardeep Singh was also not there. He went to police station in the night on same day to lodge report of the incident but the report was not written and he was forced to sit there. He admitted the glass and ring being of his watch, which he submitted the day before. According to him, the land of Hakam Singh was entered in his name and that was the cause for rivalry. He stated that the groove of his Sela was blunt and he was innocent. The accused persons neither led any evidence nor examined any witness to support their defence. 2.10 On appreciation of the evidence adduced, the trial Court held that the deceased died a homicidal death, however, the prosecution has failed to prove charge leveled against accused as independent two eye witnesses i.e. Lal Singh and 9 Pawari Ram have not been produced before the trial Court. For not accepting the evidence of the prosecution, the trial Court has recorded following reasons: (i) Independent eye witnesses i.e. Lal Singh and Patwari Ram were not produced by the prosecution. (ii) Motive is not proved (iii) Eye witnesses are not reliable as – (a) they have improved their version from stage to stage and also changed the version given in FIR (b) they did not come with true story (c) their conduct was unnatural (iv) FIR was post investigation (a) FIR lodged at 12:30 PM (b) FIR reached to the Magistrate at 8:45 PM whereas distance is only of one furlong (c) Requisition submitted to Magistrate 10 does not bear FIR Number which was received at 2 PM and FIR is said to be lodged at 12:30 PM. (v) Defence story is more probable in the facts and circumstances of the case (a) Kulhari seized from spot by police (b) Two Gandasis recovered by Investigating Officer not stained with blood (c) Sela recovered from Surjeet Singh was not blood stained (d) Blood found only on the Sela of Munshi Singh (e) Defence Story that Munshi Singh caused injuries in his private defence. On the basis of aforesaid finding, the trial Court held that prosecution has failed to establish the complicity of the accused for commission of the offence of murder of Mukund Singh and causing injuries to Gurdeep Singh PW2, resultantly he acquitted all the accused of the offences with which they were 11 charged, giving rise to the instant appeal at the instance of appellant the State of Rajasthan. 3. Mr. K. R. Bishnoi, learned Public Prosecutor for the appellant State of Rajasthan, in support of the appeal has raised the following contentions: I. The finding given by the trial Court for non- production of the two witnesses Lal Singh and Patwari Ram is perverse and contrary to law. He has also emphasized that it is not necessary that the prosecution should produce the evidence of all the eye witnesses. II In the instant case, prosecution has examined two eye witnesses, who are sons of the deceased and it is settled law that the evidence of near and dear relatives cannot be discarded because of relation, though it is true that their evidence is required to be scrutinized minutely but in the instant case the testimony of the two eye witnesses who are near and dear of the deceased is of sterling worth and there is no doubt about their credibility. 12 III. The trial Court has not accepted the evidence of PW1 Hardeep Singh and PW2 Gurdeep Singh and the reason for not believing their evidence is neither cogent nor convincing. IV. It is emphasized by him that the trial Court has committed an error while holding that the possibility of having attacked Munshi Singh with an axe cannot be ruled out. V. According to the learned Public Prosecutor, the impugned judgment and order of acquittal is based on surmises and conjectures. It is also submitted that the trial Court has committed error in holding that the three accused Mewa Singh, Leela Singh and Deva Singh were not present at the scene of occurrence. vi. It is also pointed out by the learned Public Prosecutor that the trial Court has wrongly held that the blows by Munshi Singh and other accused on the body of deceased and Gurdeep Singh were given in self defence. 13 4. On the aforesaid premise, it is contended by the learned Public Prosecutor that the prosecution has fully proved the case, therefore, the impugned judgment and order acquitting the accused, deserves to be quashed and set aside by allowing this appeal and thereby convicting the accused of the offence with which they were charged. He, therefore, urged to allow this Appeal. 5. Per contra, Mr. HSS Kharlia, learned counsel for respondents contended that prosecution has deliberately not produced the two independent witnesses i.e. Lal Singh and Patwari Ram and chosen to produce only two eye witnesses PW1 Hardeep Singh and PW2 Gurdeep Singh who are sons of deceased Mukand Singh, whose evidence is bristle with lot of contradictions and they have improved their versions at every stage and they have also improved their versions with regard to carrying what weapon by which accused. It is also submitted by the learned counsel that accused No.1 in his further statement put up a case of self defence that as the 14 deceased was having a weapon, which he tried to blow on him, accused No.1 who was having Sela with him, gave blows of the stick of Sela and as a result of that deceased died. It is also highlighted that the axe which was brought by the deceased and the two gandasis recovered by the Investigating Officer were not stained with blood and the Sela recovered from Surjeet Singh was also not blood stained. The sum and substance of the submission of the learned counsel is that accused No.1 had exercised the right of private defence and in the course of exercise of private defence Mukund Singh died. He submitted that the trial Court has considered all the aspects of the matter, and after appreciating the evidence of the prosecution witnesses, came to the just and correct conclusion of acquitting the accused of the with which they were charged, and therefore, same does not warrant any interference of this Court in exercise of the powers conferred under Section 378 of the Code. Lastly, he has drawn the attention of this Court to the fact that this is an acquittal appeal wherein the High Court should attach greater weight to the appreciation of evidence made by the trial 15 Court who had the occasion to watch the demeanour of the witnesses. He has also emphasized that it is also a cardinal principles of criminal jurisprudence that in an acquittal appeal even other view is possible then also appellate Court cannot substitute it's view by reversing the acquittal appeal into conviction unless the findings of the trial Court are perverse, contrary to the merit on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. 6. On the aforesaid premises, he submitted that the appeal lacks merit, and it deserves to be dismissed. He, therefore, urged to dismiss the Appeal. 7. This Court has considered the submissions advanced by Mr. K.R. Bishnoi, learned Public Prosecutor for the appellant State of Rajasthan and Mr. HSS Kharlia, learned counsel for respondent accused, at length and in great detail. This Court has also perused the impugned judgment and order and the set of evidence and the paper book comprising of testimonial collections. This Court has undertaken complete and comprehensive appreciation of all vital 16 features of the case and entire evidence on record which is read and re-read by us with reference to broad and reasonable probability of the case. 8. Before reappreciating the evidence on record, it may be noted that accused No.1 Munshi Singh during the pendency of appeal expired on 27.11.1992, therefore, the appeal filed against him stands abated vide order 16.12.1997 passed by this Court and we have now to examine the merits of the appeal filed by the State against remaining three accused. 9. The fact that the deceased died a homicidal death, is not in dispute. In this connection, the prosecution has relied upon the oral testimony of PW3 Dr. Rajendra Kumar, who has also examined injured Gurdeep Singh. PW3 Rajendra Kumar has prepared the autopsy report which is on record as Ex.P/12. A perusal of his oral testimony as well as Postmortem Report shows that the deceased received 12 injuries and died because of shock and haemorrhage as a result of injuries to left lung, spleen and large intestine. Therefore, it has to be held that the 17 deceased died a homicidal death. 10.Having held that the deceased died a homicidal death, the next question that falls for determination of this Court is, as to whether the accused are the authors of the injuries caused to the deceased. 11. According to prosecution, all four accused came at the place of occurrence armed with weapons and caused grievous injuries to deceased Mukand Singh with Sela and Gandasi. In this case the prosecution has produced Hardeep Singh and Gurdeep Singh both as eye witnesses. We have to see how far the story given by these witnesses is reliable. First of all, we consider the evidence of PW1 Hardeep Singh, who has said in his examination in chief that his father was standing under the tree of Kikar and he himself was cotton carding shop when the accused came from the side of their house. Munshi Singh and Surjeet Singh were having Selas and Mewa Singh & Deva Singh were having Gandasi in their hands. All the four attacked Mukand Singh and started causing injuries with Sela and Gandasis. Gandasis were used 18 from both sides i.e. from sharp and blunt side. This witness and Mukand Singh kept saying ‘Na Maro’, ‘Na Maro’. In the meantime, Gurdeep Singh came from the side of his house and when he tried to intervene, Leela Singh gave Sela blow on his stomach. Gurdeep Singh ran away towards the Kotha of Atma Singh and Mukand Singh fell down near the house of Aatma Singh. The last blow of Sela was given by Surjeet Singh to Mukand Singh due to which he fell down and after falling down of Mukand Singh, Munshi Singh also gave a Sela blow to him. Thereafter, all the four accused persons went away from the place of occurrence. At that time, his brother Gurdeep Singh came over there and Patwari Ram along with Lal Singh also came on spot. Chidi Singh and Phula Singh were standing at a distance of 20-30 Pawandas. 12.This witness has given the story in the FIR that Mukand Singh was standing in front of machine, at that time Surjeet Singh and Munshi Singh were having Sela, Mewa Singh and Deva Singh were having Gandasis and Chidi Singh and Phula Singh 19 were having Selas. They all caused injuries with Selas and Gandasis with common intention of causing murder of Mukand Singh and when the complainant made hue and cry then Patwari Ram, Lal Singh and Gurdeep Singh came on spot. Surjeet Singh gave a Sela blow in the intercostal region. Then, all the persons went away thinking that Mukand Singh died. Against the above mentioned FIR, Hardeep Singh has admitted that Chidi Singh and Phula Singh were standing only and they did not cause any injury. He has changed his version regarding all the accused persons and also regarding Chidi Singh and Phula Singh causing injuries to his father with Selas. It is relevant to mention here this witness has also mentioned in his police statement Ex.D/1 in portion K to K-1 that apart of these four accused persons Chidi Singh and Phula Singh also attacked on his father. This statement Ex.D/1 has been verified by Vichitra Kumar, SHO PW8. This witness has denied the above mentioned version of FIR and Ex.D/1 and has dared to say that he did not state such version before the police that Chidi Singh and Phula Singh have also taken part in the ‘Marpit’. He has further gone to the 20 extent of saying that above mentioned portion of FIR and Ex.D/1 was written by the police itself. 13.It is also relevant to mention here that in FIR Ex.P/1 and Ex.D/1, this witness has not stated that Chidi Singh and Phula Singh were standing at a distance of 20-30 Pawandas. He has also not mentioned that Gandasis were used from both the sides and on confrontation of the above mentioned contradiction this witness has stated in his statement in para No.23 as under:- “I cannot say that as to Mewa Singh caused 1 or 10 injuries by sharp side of Gandasi. I also cannot say about Baldev Singh that he caused how many injuries from sharp side on my father. Baldev Singh is called by the name of Dev Singh. I cannot say that Mewa Singh and Deva Singh caused 1 or 10 injuries to my father from the blunt side.” This admission of the witness goes to show that he has not seen the alleged attack on his father. 21 14. This witness has also dared to say that when his father fell down, then Munshi Singh gave a Sela blow to him and the last Sela blow was given to his father by Surjeet Singh. It is relevant to mention here that there is no mention of this version in Ex.P/1 and Ex.D/1 that the last Sela blow was given to his father by Surjeet Singh and Munshi Singh gave a Sela blow after his fall. This witness has tried to say that he did not come out from the shop due to fear and kept on seeing the incident from shop only. This witness has not mentioned in Ex.P/1 and Ex.D/1 that he did not come out of the shop due to fear. This witness has tried to say that after receiving the injury, Gurdeep Singh ran towards the kotha of Aatma Singh. He has admitted that this version has not been mentioned in Ex.P/1 and Ex.D/1. 15.The counsel for the accused persons has argued that this witness has not mentioned in Ex.P/1 FIR that his father was standing under the tree of ‘Kikar’ and while receiving injuries he kept moving back. It would be relevant to mention here that during the 22 inspection of site by Vichitra Kumar (PW8) he found a glass of wrist watch (Article-2), a ring of wrist watch (Article-3) and one axe (Article-1) from spot. This witness has admitted the presence of these articles but has said that his father had fallen on spot and the police after seizing, handed this watch to him. But when this witness was asked to produce the watch then he said that he cannot produce such watch and does not know that where it has been kept. This witness has dared to say that axe was not present at spot at the time of occurrence. Indirectly, he wants to say that axe was planted by accused persons afterwards. But, had this story been true, then this witness definitely might have told this fact to the investigation officer. He has said in his statement as under: “At the time of my statement, I told to the police that axe was not present at the spot. This fact has not been mentioned in my earlier statement. I have narrated this to the police but the police might have not written.” 23 Vichitra Kumar SHO, PW8 does not support this version of this witness and he also does not support the version of witness that there was any wrist watch on the hand of Mukand Singh and also denied the fact of handing over such wrist watch to the witness. 16.The counsel for the accused has challenged the statement of this witness on the basis of conduct of this witness. He has further argued that had this witness been present on spot then this witness would have definitely come out from the shop to save his father and brother. Apart from the conduct of this witness, the inconsistencies in the statement of the witness mentioned above make his presence doubtful. This witness has tried to falsely implicate innocent persons in this case. This fact denotes that this witness is not a reliable witness. Had this witness seen the occurrence then he would have definitely told that which accused caused which injury. This witness is silent in this regard in Ex.P/1 and police statement Ex.D/1 and he has come forward for the first time in the Court. In his Court statement, he has assigned specific injury to Munshi Singh and Surjeet 24 Singh. This improved version of