1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. ORDER Dan Singh & anr. Vs. State of Rajasthan DB CRIMINAL APPEAL NO.902/2003. Under Section 374 of the Code of Criminal Procedure. DATE OF ORDER: 9th March, 2009. PRESENT HON'BLE MR. JUSTICE K.S. RATHORE HON'BLE MR. JUSTICE S.P. PATHAK Mr. Moinuddin and Mr. Sunil Kumar Sharma for the appellants. Mrs. Alka Bhatnagar) PP for the State. Mr. J.R. Bijrania ) BY THE COURT: (PER HON'BLE PATHAK, J) This criminal appeal under section 374 of the Code of Criminal Procedure has been filed against the judgment and order dated 29th May, 2003 passed by the Additional District & Sessions Judge (Fast Track), Kama District Bharatpur in Sessions Case No.50/2002 whereby accused-appellants Dan Singh son of Fateh Singh and Mohammada son of Ateh Singh have been convicted and sentenced as under: Dan Singh: U/s 302 IPC Imprisonment for life and fine of Rs.1,000/-, in default of payment of fine to further undergo six months simple imprisonment. 2 Mohammada: U/s 302 IPC Imprisonment for life and fine of Rs.1,000/-, in default of payment of fine to further undergo six months simple imprisonment. U/s 3/25 Arms Act 2 years rigorous imprisonment and fine of Rs.1,000/-, in default of payment of fine to further undrgo six months simple imprisonment. Briefly stated, the facts are that PW-4 Ashu son of Sher Khan complainant submitted a written report on 17.9.1995 at 3.15 p.m. (Ex.P-4) in the police station Kama with the averments that on the day of incident at about 10.00 a.m. in the morning, his father Sher Khan was taking care of crops in the field and at that time accused appellants Dan Singh and Mohammada were found taking the crops of Jwar and Bajra and on raising an objection to it and further on being told by the deceased to them that the deceased had taken the case and won upto the level of Board of Revenue, Ajmer, therefore, they should not do injustice to him. On hearing the objection both the accused appellants, namely; Dan Singh and Mohammada shouted and called Rassan, Dunda son of Fateh Singh, Safat son of Dan Singh, Deenu, Ajji son of Dan Singh, Ghuggan son of Fateh Khan Mev and Jhejhpuri Nijjar son of Ghuggan Mev to kill his father. All the above persons with the common intention came there with deadly weapons like lathi, ballam, pharsa and guns along with cartridges. The accused Mohammada and Dan Singh opened fire at deceased Sher Khan which hit the deceased in his left hand. The pallets thereof entered at the back of deceased. On account of gun fire injury caused by 3 pallets, Sher Khan, the father of the complainant, fell down and died at the spot. It was also alleged that the incident was seen by Islam and Saheb Khan. It is also stated that the dead-body was brought by them in Kama Hospital. The post-mortem on the dead- body be got done and accused be dealt with according to law without any further delay. On the above report FIR No.148/95 under section 302 IPC was registered and investigation commenced. During the course of investigation, formal FIR Ex.P-5 was registered. Ex.P-1 site plan of the incident with its descriptionwas drawn, Ex.P-2 inquest report,Ex.P-3 seizure memo of two empty cartriges of 12 bore were prepared on 17.9.95. Post- mortem was performed on the dead-body of the deceased by PW- 5 Dr. Pramod Bansal. In the opinion of the doctor, death was the result of shock and hemorrhage due to injuries sustained on right lung, spleen and liver which was caused by fire arm and were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. Accused Mohammada gave information which was recorded in Ex.P-13 and accused Dan Singh gave information which was recorded in Ex.P-15. In pursuance of the information given by the accused Mohammada on 15.2.1996 vide Ex.P-11 recovery of 12 bore country made gun was made in the presence of PW-13 Rehmat, the gun was recovered from a thatched house of accused, the site plan, memo of recovery of gun is Ex.P-12. No recovery could be made on the information given by accused Dan Singh under section 27 of the Evidence Act on 4 1.10.1995 and 3.10.1995 respectively. Clothes of the deceased, one 12 bore K.F. Special Cartridge, one 12 bore Shaktiman express cartridge, 24 lead pellets and one 20 bore country made SBBL gun in sealed condition were sent to the FSL. On examination, it was found that the gun is serviceable fire arm but definite time of its last fire could not be ascertained. It was also found that the cartridges sent were not fired from 12 bore SBBL gun sent for examination. In relation to 24 lead pellets on examination, it was found that the same could have been fired from country made SBBL gun. No blood group on the articles could be determined. After completion of investigation charge- sheet was filed against accused appellants Dan Singh and Mohammada. No charge-sheet was filed against the persons whose names were stated by the complainant in report Ex.P-4. The matter came up for trial in due course before the Additional District & Sessions Judge, Deeg who framed charge against the accused-appellant Dan Singh under section 302 IPC and against accused-appellant Mohammada under section 302 IPC and 3/25 of the Arms Act to which the accused denied and claimed trial. The matter was transferred subsequently to the court of Additional District & Sessions Judge (Fast Track), Kama who recorded the statement of 14 witnesses on producing them before the court by the prosecution and several documents were marked exhibits. After close of the prosecution evidence in the statement recorded under section 313 Cr.P.C. both the accused stated that they were 5 falsely implicated in the case. Both the accused have further stated that they were not in the village and on 19.9.1995 they were informed that PW-4 Ashu and others gave beatings to Fajru and Hasan. Accused Mohammada has also stated that he lodged FIR against the complainant party. After hearing final submissions, the learned trial court has convicted and sentenced the accused as indicated here-in- above vide judgment and order dated 29.5.2003. Hence, the present appeal has been filed. We have heard learned counsel for the accused- appellants as well as learned public prosecutor for the State and carefully perused the material available on record. Following submissions have been made by the learned counsel for the appellants: (1) The oral evidence is not consistent with the medical evidence; (2) There are material contradictions between oral evidence and the report of the ballistic expert as empty cartridges found on the spot were not fired from the recovered gun; (3) No gun has been recovered from Dan Singh; (4) After completion of investigation, 8 more persons named in the report were not found accused in the case that shows that genesis of the prosecution case has been with-held; (5) Eye witnesses are near reletives and their evidence requires to be examined cautiously as on material points there are 6 contradictions which creates doubt in the prosecution story; (6) Accused had also sustained injuries but no explanation has been offered by the prosecution; (7) In relation to same incident, a complaint was filed which was sent for investigation against the complainant party on which FIR No.154/95 was registered and this fact stands confirmed by the document Ex.D-7 to D-9 and also by the documents tendered in evidence Ex.D-5A and D-6A. On the other hand, learned public prosecutor has supported the findings recorded by the trial court. It is to be seen that deceased Sher Khan died on account of gun shot injuries on his person. PW-5 Dr. Pramod Bansal conducted post-mortem on the dead-body of deceased Sher Khan on 18.9.1995 at 9.45 a.m. in Primary Health Centre, Kama and found 74 pellet injuries on his person which were at the back side of the chest and were spread over the complete left hand. All were of pin-headed size and margins were inverted, meaning thereby that around the injuries colour of the skin was blackish and there was no exit wound. Some of the pellets were pulpable. He has further stated that duration of the injuries was 24 hours. The deceased was of 65 years of age. On opening the dead-body no injury was found on the neck or head. The brain membranes were congested and at the left and back side posterior walls of chest and in the mid thereof there were 57 gun shot wounds, 17 wounds were at the back of the left hand. They were 7 pin-headed size and margin was inverted. All the wounds surrounded by black skin and no exit wound was seen. He stated that in his opinion, the cause of death was shock and hemorrhage and injuries on right lung, spleen and liver. The injuries were caused by a fire arm and were ante-mortem in nature. He has also stated that he prepared post-mortem report Ex.P-7 which bears his signatures at place 'A' to 'B'. He has also stated that 24 pellets taken out from the body were kept in a bottle and sealed and the bottle thereafter was sent to the police station, Kama for getting the same examined by FSL. He has also stated that shirt, the deceased was wearing at that time, was also kept in a packet and sealed. Impression of seal was affixed on the packets. In the cross-examination he has stated that blackening was present on the wounds. On perusal of the post-mortem report Ex.P-7 and also taking into consideration the nature of injuries and cause of death stated in the post-mortem report, there remains no doubt that the death of the deceased was of homicidal nature. Now, it is to be seen in view of the submissions made by the learned counsel that in the instant case, the evidence of the eye witnesses namely; PW-1 Islam and PW-2 Saheb Khan and PW-3 Fajru requires to be examined. The names of PW-1 Islam and PW-2 Saheb Khan have been mentioned in Ex.P-4, the first information report. PW-1 Islam has stated that on the day of incident at about 10.00- 11.00 a.m. 8 while he was grazing his she-goats near the village Injhpuri, he saw deceased Dan Singh while coming saying that his jwar crop was being cut by Dan Singh and Mohammada. He has also stated that he also reached near the deceased and asked him as to why he was getting annoyed. The deceased in reply told that his crop of jwar was being cut by accused Dan Singh and Mohammada and they were taking that crop. He has also stated that after a little while both the accused were seen by him taking with them the jwar crop and also warned the deceased that they will be coming back soon. He has also stated that after some time Dan Singh and Mohammada came back having guns in their hands and accused Dan Singh opened fire at Sher Khan and at the same time when Sher Khan turned Mohammada fired from the gun. He has also stated that on account of gun-shot injuries sustained by Sher Khan he fell down on the ground. On seeing this incident he shouted and on hearing his hue and cry the son of the deceased PW-4 Asu also came at the spot. He has also stated that thereafter he along with Farooq who also came there lifted Sher Khan and put him on a cot. He has also stated that Sher Khan died at the spot. In the cross-examination he has stated that there were cases pending between complainant and the accused. He has also stated that Dan Singh, Mohammada and Rassan are the real brothers. He admits that Dan Singh filed a suit against him in relation to a piece of land bearing khasra no.263. In relation to the incident, he has stated that he narrated about the entire incident to the son of the 9 deceased. He has also stated that accused brought guns from their house and both of them fired at the deceased. He has stated that two empty cartridges were found at the spot. On a suggestion made to the witness, he stated that Mohammada's fire from the gun hit the deceased at his hand and the back. He has stated that it is wrong to say that Dan Singh was not present at the spot but was in his village. PW-2 is Saheb Khan. He has stated that on the day of incident, he was standing in his field. Sher Khan at that time was coming and was abusing. He has also stated that Sher Khan was telling that accused Dan Singh and Mohammada had cut his crops which they were taking. He has also stated that he saw Dan Singh and Mohammada taking jwar crop which was cut by them from the field of Sher Khan. After some time both the accused came there along with guns in their hands. On seeing them he warned sher Khan and when Sher Khan stood, Dan Singh and Mohammada fired at him. He stated that first Dan Singh fired from his gun which hit on the left side of the chest of Sher Khan and immediately thereafter Mohammada fired from his gun which hit the deceased on his left hand on the back side. He has stated that on their shouting PW-4 Ashu and many other persons including PW-3 Fajru and Islam came there. The accused ran away from there. In the cross-examination, he has stated that crop was not cut in his presence by the accused. He has also stated that Dan Singh's fire hit the deceased at his chest and Mohammada's fire from the gun 10 hit the deceased at his back and injuries were found on the left hand of the deceased. He has stated that both of them had fired at the deceased. PW-3 Fajru, the alleged eye witness stated that he knew deceased Sher Khan whose baithak was 10-15 steps away from his house. He has also stated that he heard the deceased Sher Khan was mermering as accused Dan Singh and Mohammada had cut his jwar crop. He has also stated that deceased came near his baithak and sat near a papri tree. He has also stated that he saw both the accused taking the crop of Sher Khan with them and while going from that side they warned that they will kill him. He has stated that after a little while both the accused came along with their guns in their hand and when he, PW-1 Islam and PW-2 Saheb Khan told Sher Khan to run away as the accused were bent upon to kill him. He has stated that Sher Khan then stood up and at that time Dan Singh and Mohammada accused fired from their guns which caused injuries in the armpit, back and also on the hand as a result of which Sher Khan fell down and died. He has stated that thereafter we came from our house running and reached at the spot. He has also stated that Asu PW-4 son of the deceased also came there. He has proved site plan Ex.P-1 and seizure of two empty cartridges found at the spot and memo prepared thereof Ex.P-3. In the cross-examination he has stated that on 17.9.1995 in the morning he was sitting in the house taking meals and Sher Khan was coming from the field 11 shouting that the accused had cut his crop. When the witness was confronted with his police statement Ex.D-2, he has stated that why it was not mentioned in the police statement things happened in the manner suggested in Ex.D-2, he cannot assign any reason. The witness on being further confronted with his police statement in respect of the accused taking jwar and bajra crop, why it was not mentioned in the police statement to which he stated that he stated to the police but the police did not record his statement. He has also stated that he could not say as to the fire of which accused hit the deceased at what place. He has also stated that shots were fired from two guns but he was not sure as to whether injury was caused only by one gun fire. In relation to gun fire made by the accused, the witness has been confronted with his police statement as the manner in which the witness has stated in the examination-in-chief about the entire incident does not find place in the police statement Ex.D-2. He has stated that from a distance of 10 ft. gun was fired. He has denied that against him and PW-4 Asu, FIR No.154/95 was registered at the police station and charge-sheet was filed. In the FIR Ex.P-4, the eye witnesses PW-1 Islam and PW-2 Saheb Khan have been named but subsequently the prosecution also came with the case that PW-3 Fajru has also seen the incident. As regards the statement of PW-1 Islam is concerned, he has stated that Mohammada's fires hit Sher khan at his back 12 and at his hand. PW-2 Saheb Khan states that first Dan Singh had fired from his gun at Sher Khan that hit the deceased on his chest in the left side and thereafter accused Mohammada fired at the deceased which hit the left hand and back of the deceased. PW-2 Saheb Khan also states that the deceased was hit by gun fire at his chest by the gun of accused Dan Singh. PW-3 Fajru states that deceased sustained injuries by pellets in his armpit and chest and he does not know whose fire caused injury on the chest of the deceased. PW-3 Fajru has also stated that Dan Singh and Mohammada both simultaneously fired at the deceased from a distance of 10 steps. He has further stated that he never stated to police that first accused Dan Singh fired and second fire made by Mohammada which respectively caused injury at the back of the deceased and in the left hand of the deceased. He has denied almost all the material portions of his police statement Ex.D-2. The statements of PW-2 Saheb Khan and PW-3 Fajru further indicate that Fajru was not at the spot, but he came later on after hearing the gun shot fire. PW-3 Fajru has stated in his examination-in-chief that when the deceased fell down they came running from their house and Sher Khan was lying on the Earth, he was lifted and put on a cot. He has also stated that Asu also came there. Thus, even as per the statement of Fajru, it appears that in fact he came afterwards. It also appears that there is enmity between accused and complainant side. It also appears that FIR Ex.D-6 was registered in the police station in relation to the 13 incident on the complaint made by the accused side. PW-5 Dr. Pramod Bansal in his statement has also stated that he examined Rassan who is brother of accused appellants named as accused in Ex.P-4 FIR of this case on 21.9.1995 and found injuries on his person which were in all nine abrasions and lacerated wound and in this regard proved injury report Ex.D-5. Ghuggan, another person named in FIR Ex.P-4 sustained nine injuries was also examined by PW-5 on 18.9.1995 and in this regard injury report proved by the witness is Ex.D-6. He has also stated that injuries found on the person of the deceased in the post-mortem report Ex.P-7 and the injuries found in Ex.D-5 and Ex.D-6 were of the duration of 24 hours. The post-mortem report Ex.P-7 indicates that multiple gun shot wounds were in all 74. 17 pellet wounds were on the left arm and rest 57 wounds were at the back side of the chest i.e. to say on the left and middle part of the back side of the chest and wounds were of pin-head size, margins were inverted. Thus, it appears that there is a material contradiction in the statement of Saheb Khan PW-2 and Fajru PW-3 because they saw that Dan Singh fired at chest but the medical evidence and in the evidence as per the statement of PW-5, this statement does not find corroboration as there is no injury on the front side of the chest and further no recovery of gun was made from accused Dan Singh. All the injuries were at the back and on the left hand. The testimony of the above witnesses when there is material contradiction about reaching at the place of occurrence seeing the 14 incident and also in variance with the medical evidence then when there is admitted enmity between both sides then unless their evidence inspires confidence, it cannot be acted upon for basing conviction. PW-4 Asu Singh is the son of deceased who has lodged the FIR and has named in all nine persons as accused and except two i.e. present accused-appellants Dan Singh and Mohammada, rest were found not involved in the incident during the course of investigation. It is also an important aspect of the matter that during the course of investigation, an application Ex.D-4 was submitted by PW-4 Asu wherein it was stated that on account of not fit mental state, he named in the FIR all the names of other accused persons but in fact they were not there and the father of PW-4 Asu was murdered by present accused-appellants. Though, PW-4 Asu in his statement has denied submitting an application Ex.D-4 before the SHO but PW-14 Madho Singh, investigating officer, has admitted this fact. PW-4 Asu in his statement has stated that he heard noise of gun fire in the village and immediately thereafter Islam PW-1 and Saheb Khan PW-2 came shouting that the deceased was killed by accused Dan Singh and Mohammada. He has stated that he lodged his report Ex.P-4 in the police station but when he was confronted with the portion 'A' to 'B' of FIR wherein names of accused persons have been stated and it is also stated that Dan Singh and Mohammada shouted and called other persons at the spot to which the witnesses in the cross- 15 examination has denied. The explanation has been given by the witness that the report was reduced in writing by a petition-writer and why he did not record the version stated by him is not known to him. He has also stated that Ex.P-4 was not read over to him even by the thanedar. Thus, as regards the testimony of PW-1 Islam, PW-2 Saheb Khan and PW-4 Asu are concerned, it does not inspire confidence and it appears that the witnesses have with-held the genesis of the crime. Now, it is to be seen as to what is the other evidence which corroborates the testimony of the alleged eye witnesses. Ex.P-3 is the recovery memo, two empty cartridges have been recovered. As far as these cartridges are concerned, as per the FSL report Ex.P-16, the cartridges recovered were not fired from 12 bore SBBL gun seized by the police as per the information given by accused Mohammada. It is also an important aspect of the matter that no recovery has been made of the gun from the accused Dan Singh. Thus, the empty cartridges recovered from the spot are two in number, two fires were made but then FSL report Ex.P-16 does not confirm this aspect of the matter that empty cartridges recovered were fired from SBBL gun which was got recovered at the instance of the accused Mohammada. The witnesses have stated that at a distance of 10-15 steps, the gun shot was made. If that be so, then blackening found 16 on the wounds could not have been there and for that it is necessary that the fire ought to be with in the close range. In the case of