1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T State of Rajasthan V/S Jas @ Jasjeet Singh& Ors. (1) Criminal Appeal No. 446 of 1982 Prabhu Dayal V/S State of Rajasthan (2) Criminal Appeal No. 300 of 1982 Jas @ Jasjeet Singh & Ors. V/S State of Rajasthan (3) Criminal Appeal No. 301 of 1982 Date of Judgment : 13th Jan., 2010 PRESENT HON'BLE SHRI N.P.GUPTA,J. HON'BLE SHRI C M TOTLA,J. Mr. Sandeep Mehta, Mr. MK Garg, & Mr. Doongar Singh, for the appellants. Mr. AR Nikub, PP for the State. BY THE COURT: (Per Hon'ble Gupta, J.) These are three appeals arising out of the same judgment of the learned Sessions Judge, Sri Ganganagar dt. 13.8.1982, rendered in Sessions Case No. 2/82, in which case seven accused persons were tried, out of them Jasjeet @ Jas, Prabhu Dayal, Ashok and Sunil have been convicted for the offence under Sections 148, 307 and in the alternative 307/149 IPC, and each of them have been sentenced to 1 ½ years imprisonment under Section 148 with a fine of Rs. 2 150/-, in default to undergo three months R.I., 4 years imprisonment and with a fine of Rs. 200/-, in default to undergo four months R.I., for the offence under Section 307 IPC and in the alternative 307/149 IPC, and also convicted them except Prabhu Dayal for the offence under Section 27 of the Indian Arms Act, and sentenced each of them to undergo two years R.I. with a fine of Rs. 150/-, in default to undergo 2 ½ months R.I., and at the same time acquitted the remaining three accused persons being Satnam Singh, Vimal Kumar and Balvinder. Appeal No. 446 of 1982 has been filed by the State seeking to challenge acquittal of Satnam Singh, Vimal Kumar and Balvinder, so also seeking to challenge the acquittal of Jas @ Jasjeet Singh, Ashok Kumar, Sunil and Prabhu Dayal for the offence under Section 302 IPC. Appeal No. 301 has been filed by the three accused persons Jas @ Jasjeet Singh, Ashok Kumar, and Sunil, challenging their conviction; while Appeal no. 300 has been filed by Prabhuk Dayal, seeking to challenge his conviction. State Appeal being Appeal No. 446, when came up at the stage of grant of leave to appeal, this Court vide order dt. 13.12.1982 declined to grant leave against Satnam Singh, Vimal, and Balvinder Singh, and only granted leave against the remaining four accused persons, being Jas @ Jasjeet Singh, Ashok, Sunil and Prabhudayal, that is how that appeal is confined to the four accused persons. 3 It is to be noticed that during pendency of the litigation i.e. present appeals, accused Jas @ Jasjeet Singh and Sunil have expired, which fact has already come on record in different files, with the result that Appeal No. 446, so far as it relates to accused Jas @ Jasjeet Singh and Sunil abates. Likewise, Appeal No. 301 also, so far as it relates to appellants Jas @ Jasjeet Singh and Sunil abates. The net result is, that the three appeals now remain confined to two accused persons. Appeal No. 301 remains confined to the accused Ashok, Appeal No. 300 remains confined to Prabhudayal, challenging their conviction, while Appeal No. 446 remains confined to these two accused persons, to challenge their acquittal. The facts of the case are, that on 25.6.1981 at 1 in the night P.W. 1 Gurucharan Singh lodged a report Ex.P-1 at Police Station Sri Ganganagar to the effect, that Major Singh, Kulbir Singh were sleeping on the roof of the house 37F Block, while he was sleeping on the ground floor, at about 11 in the night Pappu Barar and Gurnam Singh @ Gami and Suresh were studying on the roof of other room, at that time 7-8 boys including Jas @ Jasjeet Singh of Basant Medical Store, Prabhudayal Luthra, Sunil Bhatiya, Ashok Chandak and 3-4 more boys came, and hit the door, and shouted, as to where is Gami, he should be brought out. Thereupon informant got up, and rushed to roof. In the meantime Major Singh, Kulbir Singh 4 stood up, Gami, Pappu Brar and Suresh also came on the roof where informant, Major Singh and Kulbir Singh were there, they asked as to who were the persons calling, and they saw that Jas was having pistol, Prabhudayal Luthra, Ashok Chandak and Sunil Bhatiya were also armed with pistols, and they fired about 15 to 20 shots, and thereafter hurling abuses they went towards the main road. Thereafter when these persons were going to police station to lodge the report, and reached near the house of Dr. Nirmal Singh, Prabhudayal and one more companion were standing outside, and looking at them Prabhudayal fired a shot from pistol, immediately thereupon these persons rushed towards the eastern lane, and in that lane Jas, Sunil Bhatiya, Ashok and 3-4 more boys were standing ahead, and on seeing them Jas fired a pistol which hit Major Singh, who fell down, then Ashok, Sunil and Prabhudayal also fired shots towards Major Singh, then all of them ran away. The informant purported to give out to be not knowing names of other persons, but can identify them, and they were armed with Lathis. Regarding motive it was alleged, that in the college election Gami was one of the candidates against Makhan Singh, and accused party was in support of Makhan Singh, and since then there is enmity between the parties, as a result of which the incident has been committed today. It was alleged, that earlier also there have been cases about assaults. Major Singh was taken to hospital, though he had died on the spot. In the process of taking victim Major Singh the informant's cloths got 5 smeared with blood, and his foot wear remained on the spot. On this report a case under Section 302, 147, 148 and 149 IPC, and Section 27 of the Indian Arms Act was registered, and investigation was commenced. During investigation test identification parade was conducted, where the three accused persons Vimal, Balvinder and Satnam Singh were identified. After usual investigation a charge sheet was filed in the Court of Addl. Munsiff and Judicial Magistrate, Sri Ganganagar; wherefrom the case was committed to the Sessions Court. The learned trial court framed charges against the accused Jas @ Jasjeet Singh for the offence under Sections 302, 307, 148 IPC and 25 & 27 of the Arms Act, and against Sunil, Satnam Singh and Ashok charges were framed under Sections 302 read with Section 149, 307, 148 and 25 & 27 of the Arms Act, while against Prabhudayal, Vimal Kumar and Balvinder Singh charges were framed under Sections 302 read with Section 149, 307 and 148 IPC. During trial prosecution examined 13 witnesses, out of them P.W. 1, 2, 3, and 5 were produced as eye witnesses, P.W. 13 Zile Singh is the Investigation Officer, P.W. 8 Niranjan has been produced about the accused being kept Baparda, and about seals remaining intact. Other evidence need not detain us. In the statement under Section 313, Accused Ashok denied the allegations and took a stand of alibi, and stated that on account of enmity, due 6 to elections, and litigations, the witnesses are telling lie against him, and that the deceased was having litigation with in numerous persons in town. Accused Prabhudayal also has taken the stand of alibi, and has denied the allegations, and stated, that on account of election enmity and litigations, witnesses are deposing against him. In view of the fact, that appeals are confined to these two accused persons only, we need not detain ourselves on the stand taken by the other accused persons. In defence the accused did not produce any evidence, of course, they tendered 12 documents in evidence. Learned trial court after completing trial, convicted and sentenced the accused as above. Arguing the Appeal no. 446, Mr. Nikub read to us the statements of P.W.1 and P.W.3, and the finding recorded by the learned trial court, to contend, that the learned trial court was in error in disbelieving the evidence of these two witnesses. P.W.1 is the first informant, and both these witnesses were very much there at the house 37F Block during that night, they had carried the deceased to the hospital, their garments got smeared with blood, and their presence on the spot has been disbelieved on wholly insignificant considerations. The criticism levelled against them, even if correct, is not sufficient to discard their intrinsic reliable evidence about the commission of the incident, and participation of the accused persons. Then 7 challenging the acquittal, it was submitted that only finding that has been recorded by the learned trial court in this regard is in para-53, to the effect, that the accused persons formed unlawful assembly, and went to the house no. 37F, the common object of the assembly was to commit murder of Gurnam Singh. Jasjeet Singh, Prabhudayal, Ashok and Sunil were armed with pistal, and when Gurnam Singh, Kulbir, and Major Singh came on the roof, with intention to kill them, fired at them, which did not hit, and then the accused went away, then in the lane of Dr. Nirmal Singh, Jasjeet Singh fired on Major Singh, as a result of which Major Singh fell down, after narrating this factual aspect, the learned Judge has jumped to the conclusion, that it is not possible to say that in that lane Jasjeet Singh fired being aggressor or in private defence, while running away. It is precisely with this conclusion only, that the accused persons have been acquitted of the offence under Section 302 IPC, while combined reading of the evidence of P.W.1, 2, 3, and 5 it is clear, that there is no question of any private defence, and all the witnesses have consistently stated, that even after the fire of Jasjeet Singh, which hit Major Singh, all the four persons continued to fire the shots, and therefore, their acquittal is bad. Arguing the Appeals No. 301 and 300 it was contended by the learned counsel for the appellants, that there is no error on the part of the learned Judge in disbelieving the statement of P.W.1 and 3, 8 when the evidence of P.W.1 has been disbelieved, he being the first informant the very basis of the prosecution case topples down. Reading the evidence of P.W.2 and P.W. 5, so also the statement of P.W.1 and P.W.3 it was contended, that the witnesses have improved from time to time, they have been confronted with the statements made in the first information report, so also in their previous statements, and it was contended that significantly after first incident was committed at house No. 37F, accused persons went away, all the witnesses remained in the house admittedly for about 5 to 7 minutes, on the ground floor, and admittedly they did not have any dialogue on the aspect as to who were the assailants. In such circumstances when presence of P.W.1 on the spot is very much disbelieved, it cannot be said, that the two accused persons Prabhu Dayal and Ashok were also involved in the incident. It was then submitted, that as has come in the evidence of P.W. 13 Zile Singh, that before registration of the first information report an unknown person had telephoned in the police station Ganganagar about some firing having taken place, thereupon Poonam Chand A.S.I. went to the spot in vehicle as flying squad. This telephone was received at 11.15 in the night, and Poonam Chand started immediately along with other police persons of Police Station Kotwali, which included A.S.I. Sadhu Singh who returned to the Kotwali, and gave information on the basis of which no F.I.R. was registered, because no facts of the incident were disclosed. Then, the I.O. further states that he went 9 on the spot after the F.I.R. was registered at 1.40 in the night. He has stated that the place of murder of Major Singh is at a distance of two furlong from the Police Station, Kotwali, and the road which leads towards the south goes to the place of incident, and when he reached on the spot flying squad A.S.I. and some more constable did come on the spot, which included Sukhdev Hawaldar, Mahendra A.S.I. and Hukmaram S.I., who were already there, and that when he reached no other investigation papers were there. Then it was also pointed out, that Ex.P-37 is yet another report which was sent by the Doctor about murder of Major Singh, and the body having been sent to mortuary requesting the S.H.O. to do the needful. This report was sent at the police station in the mid night. From this it was sought to be contended that the F.I.R. Ex.P-1 is a piece of manipulation, otherwise when flying squad had gone on the spot, the dead body of the Major Singh could have located, and that had already been taken away to the hospital, necessary steps were required to be taken by the investigation at that time itself, and therefore, the story propounded in the F.I.R. cannot be taken to be the basic story of the prosecution. Then, learned counsel after reading the statements of four witnesses P.W. 1, 2, 4 and 5 highlighted various aspects, to contend, firstly that for the first incident no offence under Section 307 IPC is made out, inasmuch as the story is improper on the face of it, inasmuch as if the story as propounded is believed that three or five persons were there on the 10 roof of house no. 37F block who could see the assailants, and the weapons with which they were armed, and at the same time the assailants opened fire, rather indiscriminate firing, and fired about 15-20 shots. It is too much to believe that such shots did not hit any of the witness or anybody. Another aspect highlighted is, that if so many shots had been fired substantial amount of empties would have been recovered, and were required to be recovered from the spot, while apart from the fact that sufficient empties have not been recovered, appellant Ashok is alleged to be armed with 303 pistol but no pallet or empty thereof has been recovered. The next limb of argument is, that whatever empties have been recovered, the ballistic expert's report does not establish any link between those empties, and weapons recovered from the accused persons, and therefore, it cannot be said, that it was the two accused persons who were included in the persons going there, and who had fired the shot. Thus, no offence under Section 307 IPC is made out. Then, regarding state appeal against acquittal for the offence under Section 302 IPC, it was contended, that the evidence of the four witnesses is discrepant, inasmuch as some witnesses say that even after Major Singh had fallen down shot were fired at him, and that after Major Singh died the shots were fired at the witnesses. This coupled with the fact, that first part of the incident was already over even according to the prosecution when the accused persons had gone away from the place of incident being 37F 11 block, and thereafter when second incident occurred, there is nothing to show that any common intention or object existed to kill Major Singh, rather the story of the prosecution is, that the intention was to kill Gurnam Singh @ Gami. In such circumstances, even after it is found that the accused persons are responsible for the murder of Major Singh, since a single shot was fired, only by Jas @ Jasjeet Singh who had already died, none of the present appellants being Ashok and Prabhu Dayal are responsible for that. Then, it was submitted, that a collective reading of the site plan Ex.P-2 and the site inspection note Ex.P-57, does show that on the ground floor at point C an empty of 38 bore was found by the police which was taken into possession. Obviously, this does show that some cartridges were fired from inside, and empty whereof were recovered, but then prosecution has suppressed to disclose this fact on record, which also casts a serious doubt in the reliability of the prosecution story, as propounded. It was also contended that no firearm has been recovered from the accused Prabhu Dayal, and since there is nothing to show that any cartridge from Ashok's pistol was fired, both the accused are entitled to be acquitted. Learned Public Prosecutor replying the arguments of the learned counsel for the accused in Appeals No. 300 and 301 supported the impugned judgment. 12 We have heard learned counsel for either side, and have considered the submissions, and have gone through the record closely, and carefully. At the outset it may be observed, that the three accused persons being Vimal, Balvinder and Satnam Singh have been acquitted by the learned trial court by finding that these three accused persons do not appear to have participated in the occurrence, and their names have been introduced on account of enmity. Significantly, it is not the finding that some other three accused persons were also there who could not be identified, and by misidentification these three persons have been introduced. Thus, in substance the conclusion of the trial court should be read as only four accused persons were the participants in the incident. Since acquittal of these three persons Balvinder, Satnam Singh and Vimal has been declined to be interfered with by this Court, as noticed above, vide order dt. 13.12.1982, we have to proceed on the basis that only four persons were the participants in the incident. That being the position, the vicarious liability with the aid of Section 149 IPC cannot be attracted. Obviously then, since the prosecution case consistently is, that Major Singh died of the fire shot by Jas @ Jasjeet Singh, irrespective of the fact as to whether the finding of the learned trial court about possibility of the right of private defence being available to the accused persons, is correct or not, no interference is required to be made against the 13 acquittal of Ashok and Prabhu Dayal in state Appeal No. 446. The State appeal is, therefore, dismissed. Then, we come to the other two appeals filed by the two accused persons being 300 and 301. Obviously, appellants have been convicted for the first incident, that is said to have occurred at 37F Block, comprising of indiscriminate firing by the accused persons with intention to kill Gurnam @ Gami. In this regard, the evidence mainly comprised of the statement of P.W. 2 and 5 being Gurnam Singh and Kulbir Singh. P.W. 2 Gurnam Singh has clearly deposed that he, Major Singh, Kulbir Singh, and Gurcharan Singh were living in house 37F Block where witness Pappu Brar also came, who along with Suresh were sitting on the back side roof, and on front side roof Major Singh, and Kulbir Singh had slept, while Gurucharan Singh was sleeping on the ground floor. At that time at about 11 in the night some people came, and knocked the door, and somebody called that Gami should come out whereupon he, Pappu and Suresh came on the front side roof, Major Singh and Kulbir Singh also got up, and Gurucharan Singh also came on the roof. They saw the accused persons Jasjeet Singh, Sunil, Ashok, Satnam Singh, Vimal, Prabhudayal, along with 2-3 more persons were standing on the road, Jasjeet Singh, Prabhudayal, Ashok Chandak, Sunil were armed with pistols, Satnam Singh was having double barrel 12 bore gun, while Vimal etc. were having Lathis, they were calling the prosecution party to come out and were hurling abuses, and opened 14 indiscriminate firing. Thereupon these persons raised cry and hidden themselves in side, with the result, that the shots fired by the accused hit against parapet wall, and the accused persons have alleged to have shot 15-20 shots, and then hurling abuses went away. This is the entire content of the first incident. In cross-examination he has stated, that about three months ago he and Makhan Singh contested the election of president of student union against each other, and majority of the accused persons were supporting Makhan Singh. He had seen Vimal, Prabhudayal, Ashok Chandak, and Sunil Bhatiya supporting Makhan Singh. Then he has stated, that in the earlier elections Vimal was candidate for president, and Satnam Singh was supporting him. Vimal was opposed by Pappu Brar who is a witness. In election of Vimal the witness did not support anyone, however, he is a friend of Pappu Brar. In that election Pappu succeeded, while in the election against Makhan Singh the witness was defeated. Then he has deposed, that he does not nurse enmity against Makhan Singh on account of election. Then, he has deposed that before the accused persons opened fire at 37F Block, the prosecution party had seen towards them, accused persons had called that Gami should come out. He has then stated, that they must have peeped for about half second that the accused persons opened fire, and the witness etc. took themselves aback, and thereafter raised a cry. By the time they took themselves aback, one or two shots had already been fired which did not hit them. Then, he has 15 denied any shot to have been fired from inside, as they were not armed with any revolver or pistol. Then, he has stated that after the accused persons had gone away all these persons came on the ground floor, and remained there for 15-20 minutes, during which time there was no dialogue as to identity of the accused persons. He has denied the suggestion that any of the accused persons present in the Court were not there, therefore, their name did not come when the prosecution party was in the ground floor. He was confronted with the police statement, and the witness admitted that he did not get it mentioned therein that they stayed in for about 15 minutes at 37F Block after the accused persons had gone away. He has also denied the suggestion that this thing has been deposed now in order to see that their going may not be construed as chasing the accused persons. He has maintained that he did not mention to the police that the accused persons hurled abuses. He has denied the suggestion about having not immediately gone to the police station because till then they were not able to identify the assailants, and had not seen the incident. He has admitted that in March, 1981 the accused Ashok had lodged a report against the witness and Pappu about giving beating, and the witness etc. had lodged a cross report wherein Vimal, Sunil etc. might have given evidence against the witness on behalf of Ashok, of which witness is not aware. Of course, challan therein has been filed. Then, he has admitted about institution of other criminal case also in the past, and also about cases pending 16 against him. This is the evidence of Gurunam Singh @ Gami. Then, we come to the evidence of P.W. 5 Kulbir Singh. He has deposed that on that day he was living in 37F Block Sri Ganganagar along with Gurnam Singh, Gurucharan Singh and Major Singh. At that time he was student of Ist year Arts. At about 9.30 in the night Suresh Kumar came to their house, and some time thereafter Pappu Brar also came. Gurnam Singh, Pappu Brar, Suresh Kumar got themselves busy in studying, on the back side roof of the house. Gurucharan Singh slept on the ground floor, while the witness and Major Singh lied down on the front roof of the house. At about 11 in the night the door was knocked, and Gami was challenged to come out, whereupon they went on the front roof, where Pappu, Suresh and Gami also came, and Gurucharan also came there.