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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
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(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
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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,
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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:
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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.
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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,
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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
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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
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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
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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.
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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.
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(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
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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
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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/
