PETITIONER: HARI SINGH & ANR. Vs. RESPONDENT: STATE OF RAJASTHAN DATE OF JUDGMENT: 01/10/1996 BENCH: G.N. RAY, G.T. NANAVATI ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
NANAVATI, J.
This is an appeal by special leave against the judgment
and order passed by the High Court of Rajasthan in Criminal
Appeal Nos. 239 of 1983 and 388 of 1985. RCA. No. 239 was
filed by the four convicted accused whereas RCA. No. 388 was
filed by the State against the acquittal of the remaining
accused and also against the acquittal of Accused Ramphool
under Section 302 PIC.
Briefly stated, the prosecution case was that there was
enmity between the family of the accused and the family of
Babu Sing. Since 3 or 4 days before 29.7.81 the accused were
threatening to kill members of the family of Babu Sing and
his brother P.W.1. Harbhajan. On 29.7.81 at about 6.00
O’clock in the morning while Buddha, son of Harbhajan was
returning from hillside with milk all the 21 accused
assaulted him and tried to kill him. Hearing his cries
Harbhajan and his brother Babu Singh ran to his rescue.
While they reached near the house of one Amar Singh, the
accused who were coming from the opposite side encircled
Babu and started beating him. Accused Hare Sing gave 2-3
blows with his ‘lathing’ (stick) on the head of Babu.
Accused Where Sing gave one or two lathing blows on his
legs. Accused Brijendra also gave 3 or 4 ‘lathi’ blows on
the person of Babu. So Babu fell down an thereafter all the
accused except Shrawan and Mohar Singh gave further
‘lathing’ blows to him. At that time Accused Shrew and
Mohair Sing were saying that Babu Sing should be killed and
they would bear the expenses for defending them. Meanwhile
hearing shouts raised by Y, Y Mantilla and P.W.3 Bharosey
came there. Believing that Babu was dead the accused left
that place and went to the house of Babu. Accused Gopal,
Benai Singh, Bhanwar and Dharam Singh entered the house and
took away the gun and belt of cartridges belonging to Babu.
While his wife protested Accused Gopal and Dharam Singh gave
‘lathi’ blows and Accused Benai Singh and Bhanwar gave fist
blows to her. Harbhajan took Babu to Bayana Hospital. By
that time his son Buddha was also removed to that hospital.
Harbhajan then went to the house of one Chandra Shekar, got
a complaint regarding the incident prepared and went with it
to the police station. He reached there at 6.45 A.M. and
gave the complaint. On its basis the F.I.R. (Exh. P-1) was
prepared by P.W.15 S.H.O. Kailash Bhagwati. The police
officer then went tc the hospital and recorded the complaint
of Buddha (Exh. D-5) with respect to the assault on him.
After completing the investigation the police chargesheeted
all the 21 accused. They were thereafter tried in the Court
of Additional Sessions Judge, Bharatpur for the offences
punishable under Sections 147, 148, 307 and 302 I.P.C. Those
accused who had entered the house of Babu and removed his
gun and belt of cartridges were also charged for the
offences punishable under Sections 454 and 380 I.P.C.
Accused Shrawan and Mohar Singh who had not taken any part
in beating Babu Singh were charged for the offences
punishable under Sections 147, 307 read with Section 149 and
Section 302 read with Section 149 I.P.C.
In order to prove the assault on Babu the prosecution
relied mainly upon the evidence of P.W.5 Buddha, his dying
declaration and P.W.9 Jai Singh. Jai Singh did not support
the prosecution and was declared hostile. The learned
Additional Sessions Judge found the evidence of P.W.5 Buddha
suffering from some major contraditions and infirmities and,
therefore, believed his evidence only with respect to
Accused Hari Singh, Heera Singh and Ramphool. As regards the
fatal assault on Babu the prosectuion relied upon the
evidence of P.W.1 Harbhajan, P.W.2 Mathalli, P.W.3 Bharosey
and P.W.4 Bishni. In view of the admission made by Bishni in
her evidence that she had not seen the killing of her
husband the learned Additional Judge held that she was not
an eye witness. The learned Judge found the evidence of
remaining three eye-witnesses believable as regards Accused
Hari Singh, Heera Singh and Brijendra but in view of
contraditions and inconsistencies in their evidence as
regards the remaining 17 accused he did not think it safe to
accept it and, therefore, gave benefit of doubt to them. As
24 injuries were caused to Buddha out of which 3 were
grievous the learned trial judge convicted Accused Ramphool,
Hari Singh and Heera Singh under Section 307 I.P.C. He also
convicted Accused Hari Singh, Heera Singh and Brijendra
under Section 302 I.P.C. for causing death of Babu. Thus,
Accused Hari Singh and Heera Singh were convicted for the
offences punishable under Sections 302 and 307 I.P.C.,
accussed Brijendra under Section 302 I.P.C. and Ramphool
under Section 302 I.P.C. These convicted accused were
acquitted of all the other charges.
The four convicted accused filed Criminal Appeal No.239
of 1983 challenging their conviction. The State filed an
acquittal appeal against the 17 accused who were completely
acquitted and also against the acquittal of Accused Ramphool
under Section 302 I.P.C. Leave to appeal was granted only
against some of them but it is not necessary now to refer to
that aspect as the acquittal appeal was dismissed by the
High Court and that order has become final. The High Court
after reappreciating the evidence confirmed the conviction
of Hari Singh and Brijendra under Section 302 I.P.C. for
causing death of Babu as it found that the evidence against
them was quite consistent and sufficient. The High Court
acquitted Heera Singh as not found that his name was not
mentioned in the F.I.R. and he was falsely implicated as one
of the persons who had given lathi blows to the deceased.
With respect to the assault on Buddha the High Court held
that his evidence suffered from material improvements and,
therefore, it was not at all safe to rely upon his evidence
for convicting any accused. The High Court, therefore,
acquitted all the three accused who were convicted by the
trial court under Section 307 I.P.C. The High Court also
disbelieved the evidence with respect to the third incident,
namely, accused going to the house of Babu and taking away
his gun and belt of cartridges after causing some injuries
to his wife Bishni.
The learned counsel appearing for the two appellants,
whose conviction under Section 302 has been confirmed by the
High Court, submitted that the High Court failed to
appreciate that the F.I.R. (Exh. P-1) could not have been
recorded at 6.45 A.M. in view of certain admissions made by
P.W.1 Harbhajan and that in all probability the complaint
against the accused was recorded after a complaint was given
by Accused Gopal against Babu, Harbhajan, Buddha and others
at the Bayana Police Station with respect to the same
incident. He also submitted that the courts below failed to
appreciate that Exh. D-5 was the first information in point
of time and the investigation should be deemed to have
started on the basis of the said information and, therefore,
Exh. P-1 could not have been treated as F.I.R. It was also
contended that P.W.3 Bharosey was not an independent witness
and, therefore, it was not proper to convict the appellants
relying upon the evidence of two interested witnesses only.
It was also contended that the courts below committed an
error in not believing the defence of the appellants that
injuries were caused by them in exercise of their right of
private defence, particularly when it was proved that
Accused Hari Singh had received two injuries on his person
during that incident and one of them was a fracture. Lastly,
it was contended that the evidence does not justify their
conviction under Section 302 I.P.C. and, therefore, their
conviction under that Section is improper and illegal.
After going through the evidence we find that there is
no substance in any of the contentions raised on behalf of
the appellants. the first incident, that is, the assault on
Babu took place at about 6 A.M. according to the prosecution
evidence. Even in the cross-complaint filed by Accused Gopal
time of the incident was mentioned as 6 A.M. though his
version about the incident was different. It was submitted
that P.W.1 Harbhajan in his evidence has stated that after
the accused left he took his brother Babu to the hospital,
then went to the house of Chandra Shekar, got a complaint
regarding the incident prepared and then went to the police
station and therefore considering the time that would have
been taken in doing all these things and the distance,
Harbhajan could not have reached the police station at 6.45
A.M. The evidence discloses that the police station was only
two furlongs away in the eastern direction from the place of
the incident. The hospital to which Babu was taken by
Harbhajan was on the way to the police station. Though it
was brought out in his cross-examination that house of
Chandra Shekar was about 500 to 600 yards away from the
hospital no attempt was made to elicit it which direction,
it was situated. If the hospital and the house of Chandra
Shekar were on the way to the police station it is difficult
to appreciate how more than 45 minutes would have been taken
in lodging the complaint. There was absolutely no reason for
the investigating officer at the stage to put incorrect time
in the F.I.R. Another fact which appears from the F.I.R. is
that it was registered as Crime No. 230 of l981. The
complaint which Accused Gopal gave was registered as Crime
No. 231 of ,981. Thus the complaint of Harbhajan was
registered earlier. The complaint Exh. D-5 was taken down by
the investigating officer after going to the hospital. For
all these reasons, it cannot be said that F.I.R., Exh. P-1,
was not first in point of time. The courts below, therefore,
rightly treated Exh. P-1 as the F.l.R. and committed no
error in relying upon the same for the purpose of
corrobration.
After going through the evidence of eye witnesses we
find that the courts below have not committed any error in
appreciating their evidence which would justify interference
by this Court. We find that the names of P.W.2 Mathalli and
P.W.3 Bharosey were mentioned in the F.I.R. (Exh. P-1) which
was recorded within a short time. As stated earlier Mathalli
did not fully support the prosecution and was declared a
hostile witness. He however did depose about the presence of
appellants Heera Singh and Brijendra and giving of lathi
blows by them to deceased Babu and also about presence of
P.W.3 Bharosey at the time of the incident. He was in no way
connected with deceased Babu or P.W.1 Harbhajan nor did he
have any enmity with the appellants. P.W.3 Bharosey’s
statement was not recorded on the same day but was recorded
on 14.8.91. According to the investigating officer he could
not record his statement earlier because he was not
available when he had tried to contact him. Relying upon the
statement of P.W.3 Bharose that during all those days he was
in Bayana and had not gone out, it was submitted by the
learned counsel that the said explanation is false and that
Bharosey was falsely put up as an eye witness. As state
earlier name of P.W.3 Bharosey was mentioned in the F.I.R.
and therefore, it is not possible to accept the contention
that he was a got up witness. Merely because the witness did
not go out of Bayana town it cannot be said that he was
available all the time and that the investigating officer
was not telling the truth when he stated that he was not
available when he had tried to contact him. It was also
submitted that P.W.3 Bharosey was closely related to
deceased Babu and thus was a highly interested witness and,
therefore, no reliance should have been placed upon his
evidence without independent corroboration. In his cross-
examination he denied that father of Harbhajan and Babu was
his real uncle. No attempt was made thereafter to establish
his relationship with deceased Babu or Harbhajan. The fact
that the houses of deceased Babu, P.W.1 Herbhajan, P.W.3
Bharosey were situated in the same complex, by itself,
cannot read to an inference that he was a partisan witness.
Even Babu and Harbhajan were living in separate houses
though in the same complex. It was not even suggested to
P.W.3 Bharosey that he was staying jointly with Harbhajan or
Babu. Therefore, not much weight can be attached to the
statement of P.W.2 Mathalli that Bharosey was living in the
same house in which Babu and Harbhajan resided. What the
witness really meant was that he was living in the same
complex. Therefore, Bharosey cannot be said to be an
interested witness as no other connection has been
established between him and deceased Babu and Harbhajan. The
Courts below were, therefore, right in placing reliance upon
the evidence of P.W.1 Harbhajan as it was corroborated by
the F.I.R. (Exh. P-1) and also by the evidence of P.W.2
Mathalli and P.W.3 Bharosey for believing the presence of
the appellants at the scene of the offence and the role
played by them.
The accused including the appellants had pleaded right
of private defence by alleging that on the date of the
incident at about 6 A.M., near the house of one Amar Singh,
Babu, Harbhajan and his sons had attacked Gopal with lathis.
Babu had a gun with him. While Babu was loading his gun with
a cartridge Accused Gopal have a lathi blow to him with the
result that the gun fell down. Hearing his shouts Hari
Singh, Rattan, Jagga and others had come. Hari Singh tried
to save Gopal and while doing so he himself received some
lathi blows from, Harbhajan and his sons. The High Court and
trial court rightly did not believe this offence version in
view of large number of injuries on the person of Babu and
absence of any material to show that the accused had
received injuries during this incident.
It was lastly contended by the learned counsel for the
appellants that in absence of any evidence as to who had
caused fatal injuries to deceased Babu none of the two
appellants could have been convicted substantively for the
offence punishable under Section 302 I.P.C. The evidence of
the eye-witnesses is that appellant No.1 Hari Singh had
given lathi blows on the head of deceased. The medical
evidence discloses that skull of Babu was fractured and the
internal injuries which he had received in his brain were by
themselves sufficient in the ordinary course of nature to
cause his death. Appellant No.1 was, therefore, rightly
convicted for the offence punishable under Section 302
I.P.C. Appellant No.2, according to the evidence of the eye-
witnesses, has given stick blows on the legs of the
deceased. Though the eye-witnesses have also stated that
some more blows were also given by him to Babu after he had
fallen down they have not stated on which part of the body
those blows were given. Thus, there is no clear evidence on
record to show that Apppellant No. 2 had caused a fatal
injury. Therefore, conviction of a appellant No.2 under
Section 302 cannot be sustained. However, his participation
in the murderous assault on Babu along with Appellant No.1
is proved beyond any doubt and, therefore, he would be
guilty under Section 302 read with Section 34 I.P.C.
Therefore, his conviction will have to be altered from
Section 302 to Section 302 read with Section 34 I P.C.
However, the order of sentence imposed upon him is
confirmed.
In the result the appeal is dismissed subject to the
modification stated above. The appellants were ordered to be
enlarged on bail by this Court on July 3, 1987. Therefore,
they are ordered to surrender immediately to surrender
immediately to serve out the remaining sentence.