Gyan Singh vs State on 13 May, 2009

Rajasthan High Court – Jodhpur
Gyan Singh vs State on 13 May, 2009
                                 1

      IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
                             AT JODHPUR
          -----------------------------------------------------


                   (1) CR. APPEAL No. 757 of 2004
                                   GYAN SINGH
                                       V/S
                                        STATE



             (2) CRIMINAL APPEAL No. 833 of 2006
                                     STATE
                                      V/S
                         GURCHARAN SINGH & ORS.


    Date of Judgment : 13.05.2009

                    HON'BLE SHRI AM KAPADIA,J.
                HON'BLE SHRI DEO NARAYAN THANVI,J.

    Mr. Chaitanya Gahlot for accused persons.
    Mr. K.R. Bishnoi, Public Prosecutor.

                                     JUDGMENT
                                        -----


BY THE COURT (PER HON'BLE MR. A.M. KAPADIA, J.):

1. Nine accused persons viz., Gyan Singh, Gurcharan

Singh, Nand Kaur, Jaswant Singh, Ram Singh,

Sarjeet Kaur, Amarjeet Kaur, Raj Kaur and Pal Kaur

(accused A-1 to A-9 respectively, for short) were

charged and tried by the learned Sessions Judge,

Sri Ganganagar, in Sessions case No. 9 of 2004 for

the offence under Sec. 148, 302, 302/149, 332,
2
332/149, 395 of the Indian Penal Code (‘IPC’, for

short) and Sec. 3/25 of the Arms Act, on the

accusation that on the day of incident i.e.

26.09.2003 they by forming an unlawful assembly

assaulted deceased ASI Ramdhan, who intercepted

them in connection with some dispute regarding

possession of Munsha Singh in Gurudwara

premises, Hakamabad where deceased Munsha

Singh was a ‘Granthi’ at the relevant time and who

died custodial death on 06.10.2003. Munsha Singh

inflicted Kripan blow on the head of Ramdhan,

accused A-2, A-4 & A-5 caught hold of Ramdhan

and the female accused A-3, A-6 to A-9 pelted

stones while Gyan Singh accused A-1 snatched

revolver of Ramdhan and fired one shot on him, as

a result of which Ramdhan died in hospital later on.

2. At the end of trial, accused A-1 Gyan Singh was

found guilty for the offence under Sec.302 IPC for

committing murder of Ramdhan and also for the

offence under Secs. 333, 379 IPC and Sec.3/25 of

the Arms Act, he was, therefore, sentenced as

under:

3

U/s.302 IPC Life imprisonment and fine of
Rs.1000, in default of payment of
fine further six months’ simple
imprisonment
U/s 333 IPC Three years’ rigorous
imprisonment and fine of Rs.500,
in default of payment of fine
further three months’ simple
imprisonment
U/s 379 IPC Two years’ rigorous imprisonment
and fine of Rs.500, in default of
payment of fine further three
months’ simple imprisonment
U/s 3/25 One year’s rigorous imprisonment
Arms Act and fine of Rs.500, in default of
payment of fine further three
months’ simple imprisonment

3. So far as accused A-2 Gurcharan Singh is

concerned, he was found guilty for the offence

under Sec. 324, 332 while accused A-4 Jaswant

Singh and A-5 Ram Singh were found guilty under

Sec. 353 IPC and all these three accused were

sentenced to the period already undergone by them

during trial and have not preferred appeal against

their conviction. Rest of the accused i.e. A-3 Nand

Kaur, A-6 Sarjeet Kaur, A-7 Amarjeet Kaur, A-8 Raj

Kaur and A-9 Pal Kaur have been acquitted of all

the offences with which they were charged.

4. Aggrieved by the impugned judgment and order,

accused A-1 Gyan Singh filed D.B. Criminal Appeal
4
No. 757 of 2004 with the aid of Sec.374 of the

Code of Criminal Procedure (‘Code’, for short)

challenging the conviction recorded against him for

offence under Sec.302 IPC whereas the State of

Rajasthan has filed D.B. Criminal Appeal No. 833 of

2006 challenging acquittal of accused A-2, A-4 & A-

5 for the offence under Sec.302 IPC.

5. The prosecution case, as disclosed from the FIR and

unfolded during trial is that on 26.02.2003

complainant PW2 Krishan Kumar Constable

submitted a report to the SHO, Lalgarh Jatan for

registering First Information Report alleging inter-

alia that for resolving the dispute in connection with

the residence of Munsha Singh in Gurudwara

premises, Hakmabad, a meeting was held in the

Panchayat Bhawan, in which SDM, Sri Ganganagar;

Dy. Superintendent of Police, Sadulsahar; SHO,

Lalgarh Jatan; Sarpanch, Up-Sarpanch and persons

of Baori community were present and it was

decided that Munsha Singh would give up his

possession and for that purpose they started for

Gurudwara but did not reach there where the

Administrative Officers, Police Authorities and the
5
villagers were waiting for them. It was informed by

someone at that time that Munsha Singh

accompanying his family members had proceeded

for Sri Ganganagar in a jeep so the police personnel

were directed to bring them. Assistant Sub

Inspector Ramdhan and complainant PW2 Krishan

Kumar, Constable went in a private jeep to search

and bring them back. At about half past 2 O’ Clock,

when they reached near Abohariya Bus Stand, they

found Munsha Singh and his family members going

towards Sri Ganganagar side in a jeep, who were

stopped and told that people were waiting for them

in Hakmabad at which Munsha Singh, his four sons

and ladies got excited and started beating ASI

Ramdhan and also the complainant. It was further

alleged that Munsha Singh gave a blow of ‘Kripan’

on the head of ASI Ramdhan and when Ramdhan

tried to save himself, he was beaten again and

accused A-1 after snatching his revolver a shot was

fired on his chest. It was also alleged that other

accused pelted stones on them and on reaching

police team at the place of incident, the accused

persons ran away towards fields. Police party taken

ASI Ramdhan to hospital where he was declared
6
dead.

6. On the basis of aforesaid report, police registered

FIR No.202/03 against accused persons for the

offence under Sec.147, 148, 353, 302, 395 read

with Sec.149 of the IPC and under Sec. 25 & 27 of

the Arms Act and started investigation. Munsha

Singh expired during investigation while in custody.

7. As incriminating evidence was found against all

other nine accused persons i.e. A-1 to A-9, the

police filed chargesheet against them in the Court

of Judicial Magistrate, 1st Class, Sadul Sahar. The

offence under Section 302 IPC being exclusively

triable by the Court of Sessions, the learned

Magistrate committed the case to the Court of

Sessions Judge, Sri Ganganagar.

8. The learned Sessions Judge, Sri Ganganagar (‘trial

Court’ for short), who conducted the case, framed

charge against accused persons, which were read

over and explained to the accused to which they

pleaded innocence and claimed trial, therefore, they

were put to trial in Sessions Case No.9 of 2004.
7

9. To prove the culpability of the accused, the

prosecution has examined as many as 18 witnesses

and relied upon number of documents.

10.After recording of the evidence of the prosecution

witnesses was over, the trial Court recorded further

statements of the accused as required under

Sec.313 of the Code. In their further statements,

all the accused denied the allegations leveled

against them and stated that they are innocent

persons and have been falsely implicated in this

case. They further stated that SHO Ramdhan

intercepted their jeep and caught Munsha Singh

and as they were frightened, they ran away.

Accused produced documents D/1 and D/2 i.e. the

statements of Krishan Kumar, which were

exhibited, however, in support of their defence,

they did not lead any oral evidence.

11.On appreciation, evaluation, analysis and scrutiny

of the evidence on record, the trial Court has come

to the conclusion that homicidal death of deceased

Ramdhan is proved as he died on receiving the shot
8
fired from revolver. It is also held by the trial Court

that the shot was fired by accused A-1 from

revolver which was snatched from deceased

Ramdhan and on receiving the injuries Ramdhan

died, therefore, accused A-1 was held guilty for the

offence of murder punishable under Sec.302 and

sentenced to suffer imprisonment for life and fine of

Rs.1,000, in default of payment of fine further six

months’ simple imprisonment, so also for other

offences as mentioned in foregoing paragraphs of

the judgment.

11.1 So far as accused A-2 is concerned, the

trial Court convicted him for the offence under Sec.

324 and 332 IPC whereas accused A-4 Jaswant

Singh and A-5 Ram Singh were convicted for

offence under Sec.353 of the IPC and they were

sentenced to the period already undergone by them

during trial.

11.2 The trial Court did not find the remaining

female accused i.e. accused A-3 Nand Kaur, A-6

Sarjeet Kaur, A-7 Amarjeet Kaur, A-8 Raj Kaur and

A-9 Pal Kaur guilty for any of the offences with
9
which they were charged and therefore acquitted

them.

11.3 It is this judgment and order which has

given rise to these two appeals being D.B. Criminal

Appeal No. 757 of 2004 filed by accused A-1

challenging the order of conviction and sentence for

the offence under Sec.302 IPC and D.B. Criminal

Appeal No. 833 of 2006 filed by the State of

Rajasthan challenging the acquittal of accused A-2

Gurcharan Singh, A-4 Jaswant Singh and A-5 Ram

Singh of the offence under Sec.302 IPC.

11.4 It may be noted that the State of

Rajasthan has not filed appeal against remaining

accused i.e. accused A-3, A-6, A-7, A-8 and A-9,

who were acquitted of all the offences with which

they were charged.

12.As both the appeals arise out of the same

judgment and order, therefore, they are heard

together and decided by this common judgment.

13.Mr. Chaitanya Gahlot, learned counsel for accused
10
A-1 does not dispute the factum of killing Ramdhan

by fire arm injury as homicidal death of Ramdhan is

proved, however, he submits that this not a case of

murder punishable under Sec.302 IPC but a case of

culpable homicide not amounting to murder

punishable under Section 304 Part II IPC as

according to him incident had taken place all of a

sudden when deceased Ramdhan intercepted

Munsha Singh and prevented him from going to

police station due to which there was altercation

between them and Ramdhan being police officer

forcibly tried to take him to Gurudwara, at that

juncture, in the heat of passion this incident took

place and accused A-1 inflicted only one fire arm

injury. He does not dispute so far as conviction

recorded against accused A-1 for the other offences

is concerned.

14.So far as the appeal filed by the State challenging

the acquittal of accused A-2 for the offence under

Sec. 302 IPC and acquittal of accused A-4 & A5 for

offence under Sec.302 IPC is concerned, there is

no overtact attributed to them in killing of deceased

Ramdhan, therefore, the judgment and order of
11
acquittal passed in favour of accused A-2, A-4 & A-

5 for offences under Sec. 302 IPC does not call for

interference.

15.On the aforesaid premise, it is submitted by the

learned counsel that the conviction recorded

against accused A-1 for the offence under Sec.302

may be altered to Sec. 304 Part II for culpable

homicide not amounting to murder and as accused

A-1 is in jail for last 6 years, the sentence

undergone by him may be treated as substantive

sentence and he may be set at liberty whereas the

appeal filed by the State challenging acquittal of

accused A-2, A-4 & A-5 may be dismissed.

16.Per contra, Mr. K.R. Bishnoi, learned Public

Prosecutor has supported the judgment and order

of conviction and sentence recorded against

accused A-1 for the offence under Sec.302 IPC.

According to him, as there was intention on the part

of accused A-1 to commit murder of Ramdhan, he

was rightly convicted under Sec.302 IPC and not

under Sec. 304 Part II, and therefore, no

interference is called for in the impugned judgment
12
and order recording conviction against accused A-1

for the offence under Sec.302 IPC. So far as

acquittal recorded in favour of accused A-2, A-4 &

A-5 for the offence under Sec.302 IPC is concerned,

it is not based on sound appreciation of evidence as

they formed an unlawful assembly and caught hold

of Ramdhan by sharing the common object,

therefore, they are guilty for the offence under

Sec.302/149 IPC. He, therefore, urged to dismiss

the appeal filed by accused A-1 and to allow the

appeal filed by State of Rajasthan and consequently

accused A-2, A-4 & A-5 may be held guilty for the

offence of murder of Ramdhan punishable under

Sec.302 read with Sec.149 IPC and they may be

sentenced to imprisonment for life.

17.We have considered the submissions advanced by

learned counsel for the parties. We have also

undertaken a complete and comprehensive

appreciation of all vital features of the case and the

entire evidence on record which is read and re-read

by the learned counsel for the parties with

reference to broad and reasonable probabilities of

the case. While dealing with the case, this Court
13
has examined the entire evidence on record and

considered the arguments advanced on behalf of

the accused and infirmities pressed, scrupulously

with a view to find out as to whether the trial Court

has rightly recorded the order of conviction and

sentence for the offence under Sec.302 IPC against

accused A-1 and the order of acquittal passed in

favour of accused A-2, A-4 & A-5 for offence under

Sec.302 IPC.

18.There is no dispute to the fact that the deceased

died a homicidal death. In this connection, the

prosecution examined and relied upon the oral

testimony of PW12 Dr. V.P. Aseeja, who has

conducted postmortem on the dead body of the

deceased. He has also issued the postmortem

report which is on record as Ex.P/31.

19.On conjoint reading of oral testimony of PW12 Dr.

V.P. Aseeja and the Postmortem Report Ex.P/31, it

is seen that the deceased received as many as

seven injuries and he died because of hemorrhagic

shock due to injury to lungs and heart caused by

firearm. Therefore, there is no manner of doubt
14
that the deceased died a homicidal death.

20.Since the learned Advocate for accused A-1 has not

disputed the killing of Ramdhan and also inflicting

injuries by accused A-1 by firing revolver, the

question that requires to be answered by us is

whether the offence committed by accused A-1 is of

murder punishable under Sec.302 IPC or is culpable

homicide not amounting to murder falling under

Exception IV of Sec.300 punishable under Part II of

Sec.304 IPC.

21.To prove the offence against accused, prosecution

has mainly relied upon four eye witnesses; namely,

PW2 Krishan Kumar, PW5 Ramswaroop, PW6

Naresh Kumar and PW15 Rameshwarlal. Out of

these eye witnesses, PW5 Ramswaroop and PW15

Rameshwarlal have not supported the prosecution

case. Therefore, in order to find out whether the

accused committed the offence of murder

punishable under Sec.302 IPC or culpable homicide

not amounting to murder, we have to advert to the

evidence of PW6 Naresh Kumar and PW2 Krishan

Kumar.

15

22.PW6 Naresh Kumar in his examination in chief

before the Court has supported the prosecution

case, however, in his cross examination he has

admitted that Gurcharan is handicapped, therefore,

he cannot give blows by ‘Kripan’ as stated by him in

his examination in chief. In his statement, he has

said that he saw the incident at a distance of about

50 feet and cannot say how shot was fired. So far

as PW2 Krishan Kumar, the constable posted at

Lalgarh Jatan, who accompanied the deceased, is

concerned, he has admitted that dispute was of

intense nature and all the accused were under

pressure of the administration. He has also stated

that Munsha Singh and his four sons were also

there and arrived at a compromise to vacate the

premises in question and to implement the

compromise all the authorities and the police party

went to ‘Gurudwara’. He has also stated that

compromise was not agreeable to the accused and

for that reason they did not reach the spot. He has

also testified that the officers at the spot told for

bringing the accused party and for that purpose

deceased Ramdhan alongwith Krishan Kumar,
16
Ramswaroop, Naresh and Rameshwarlal started in

a jeep.

23.On overall re-appreciation of the evidence of above

two witnesses, there is no manner of doubt that

prior to incident, compromise between deceased

Munsha Singh, on the one hand, who died custodial

death, and Gurudwara on the other hand arrived at,

which was not agreeable to the accused persons,

and therefore Munsha Singh and his family started

for going to Sri Ganganagar for lodging the

complaint and the police party did not want that

they should lodge the complaint, therefore to

prevent them from lodging complaint, police party

chased them and intercepted on the way. At that

time quarrel took place between Munsha Singh and

deceased Ramdhan. Deceased Munsha Singh gave

‘Kripan’ blow and there was hot exchange of words

between them. Deceased Ramdhan was mindful to

bring them to Gurudwara for acting upon the

compromise and therefore Munsha Singh gave

‘Kripan’ blow and accused No.1 snatched revolver

and fired one shot on Ramdhan and thereafter

immediately all accused flee away from the scene of
17
offence.

24.On the basis of aforesaid evidence, it cannot be

said that there was intention on the part of accused

A-1 to kill deceased Ramdhan. They only wanted to

get rid of Ramdhan as deceased Ramdhan wanted

to take them to Gurudwara and they wanted to go

to Sri Ganganagar to lodge a complaint. Had

accused A-1 was mindful to kill deceased Ramdhan

by taking undue advantage, then he would have

fired more than one shot from the revolver.

Therefore, according to us, accused A-1 has not

acted in any cruel or unusual manner nor he has

taken undue advantage of the situation.

25.In the case of Lachman Singh Vs State of Haryana

(2006) 10 SCC 524, the Supreme Court has held

that if occurrence takes place in course of sudden

quarrel, conviction of appellant is required to be

altered from Sec. 302 to 304 Part I IPC.

26.In the case of Harendra Nath Borah Vs. State of

Assam 2007 AIR SCW 4631, Supreme Court has

clearly set out the distinction between ‘murder’ and
18
culpable homicide not amounting to muder. In the

said case, deceased truck Driver was assaulted by

accused police personnel and thereafter left on the

road after he became senseless. In that case, the

Supreme Court has altered conviction recorded

under Sec.302 to 304 Part I IPC.

27.Applying the principle enunciated by Supreme

Court in above referred two decisions to the facts of

the present case, there is evidence to the effect

that deceased Munsha Singh, who died custodial

death after this incident, was in possession of

premises in Gurudwara for many years, therefore,

compromise was entered between Munsha Singh

and Gurdwara, however, he was not happy with the

compromise therefore he alongwith his family

members was going to lodge complaint at Sri

Ganganagar. The police intercepted them on the

way to bring them to Gurdwara and scuffle took

place between accused party and deceased

Ramdhan and other police personnel and in that

scuffle there was hot exchange of words and since

the accused did not want to go to Gurudwara, in a

sudden excitement accused A-1 snatched revolver
19
of Ramdhan and fired one shot on Ramdhan and

thereafter all flee away. If he was mindful to take

undue advantage, then he would have fired more

than one shot. Therefore, the act of the accused

falls is exception 4 of Sec.300 IPC punishable under

Part I of Sec.304 IPC.

28.Now the next question which is to be answered by

us is as to what sentence should be awarded to

accused A-1 for commission of offence of culpable

homicide not amounting to murder under Sec. 304

Part I IPC.

29.In catena of decisions pronounced by the Supreme

Court, normal sentence for the offence under Sec.

304 Part I varies from 7 years to 10 years and in

the instant case according to us if sentence of 7

years is imposed, same would meet the ends of

justice. So far as conviction and sentence recorded

against accused A-1 for other offences is

concerned, we do not want to disturb the order of

conviction and sentence as learned counsel does

not dispute the same.

20

30.Now this takes us to examine D.B. Criminal Appeal

No.833/06 filed by State of Rajasthan challenging

the acquittal recorded in favour of accused A-2, A-4

and A-5 for the offence under Sec.302 IPC.

31.Before we proceed to examine the merits of the

acquittal appeal, it would be appropriate to refer to

the principles which would govern and regulate the

hearing of appeal by the High Court against an

order of acquittal passed by the trial Court. In the

case of Ajit Savant Majagavi v. State of Karnataka,

reported in AIR 1997 3255, the Supreme Court has

laid down the principles which read as under:

(a)In an appeal against an order of acquittal,
the High Court possesses all the powers, and
nothing less than the powers it possesses
while hearing an appeal against an order of
conviction.

(b)The High Court has the power to reconsider
the whole issue, reappraise the evidence and
come to its own conclusion and findings in
place of the findings recorded by trial Court, if
the said findings are against the weight of the
evidence on record, or in other words,
perverse.

(c)Before reversing the finding of acquittal,
the High Court has to consider each ground on
which the order of acquittal was based and to
record its own reasons for not accepting those
grounds not subscribing to the view expressed
by the trial Court that the accused is entitled
to acquittal.

21

(d)In reversing the finding of acquittal, the
High Court has to keep in view the fact that
the presumption of innocence is still available
in favour of the accused and the same stands
fortified and strengthened by the order of
acquittal passed in his favour by the trial
Court.

(e)If the High Court, on a fresh scrutiny and
reappraisal of the evidence and other material
on record, is of the opinion that there is
another view which can be reasonably taken,
then the view which favour the accused should
be adopted.

(f)The High Court has also to keep in mind
that the trial had the advantage of looking at
the demeanour of witnesses and observing
their conduct in the Court, especially in the
witness box.

(g)The High Court has also to keep in mind
that even at that stage, the accused was
entitled to benefit of doubt. The doubt should
be such as a reasonable person would
honestly and conscientiously entertain as to
the guilt of the accused.

50.In Anok Singh Vs. State of Punjab, reported in AIR

1992 SC 598, the Supreme Court has held that in an

appeal against acquittal, the High Court should attach

greater weight to appreciation of evidence by the trial

Judge who had the occasion to watch the demeanour

of the witnesses.

51.Keeping in forefront the principle enunciated by the

Supreme Court in above referred three judgments, if
22
we examine the case of the prosecution against

accused A-2, A-4 and A-5, according to us, no overtact

is attributed to them. They inflicted only simple injuries

to the informant and other witnesses. So far as the

evidence of PW6 Naresh Kumar is concerned, there is

no reliable, trustworthy or clinching evidence that the

three accused caught hold of deceased Ramdhan. No

overtact is attributed to them for killing Ramdhan,

therefore, according to us, the trial Court has rightly

recorded acquittal of accused respondent A-2, A-4 and

A-5 for the offence under Sec.302 IPC.

52.On overall view of the matter, we do not find any

merit in Criminal Appeal No. 833 of 2006 filed by the

State of Rajasthan against accused A-2, A-4 and A-5

challenging the order of acquittal recorded in their

favour.

53.For the forgoing reasons, Criminal appeal No. 757 of

2004 filed by accused A-1 succeeds in part and

accordingly it is partly allowed. As a consequence

thereof, we alter conviction recorded against accused

A-1 for the offence under Sec.302 to Sec.304 Part I

and for that he is sentenced to rigorous imprisonment
23
for 7 years and fine of Rs.1,000 and in default of

payment of fine to further undergo six months’ simple

imprisonment. So far as conviction and sentence

recorded against accused A-1 for other offences under

Sec. 333, 379 IPC and Sec. 3/25 Arms Act is

concerned, same is confirmed and maintained.

Accused is in jail and shall serve out remaining part of

his sentence. It is also ordered that all the sentences

shall run concurrently.

54.Criminal Appeal No. 833 of 2006 filed by the State

Government challenging the order of acquittal of

accused respondents A-2, A-4 & A-5 fails and

accordingly it is dismissed.

( DEO NARAYAN THANVI ),J. ( AM KAPADIA ),J.

jpa/

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes:

<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>

* Copy This Password *

* Type Or Paste Password Here *