1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:JUDGMENT:
(1) D.B. Criminal (Jail) Appeal No.1119/2004.
(1)Jaswant Singh s/o Kesar Singh,
(2)Kesar Singh s/o Panney Singh, and
(3)Sajjan Singh s/o Kesar Singh
Versus
State of Rajasthan.
(2) D.B. Criminal (Jail) Appeal No.1180/2004.
(Smt. Ragi Versus State of Rajasthan)
DATE OF JUDGMENT : January 12th, 2010
PRESENT
HON'BLE MR. JUSTICE A.M. KAPADIA
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
_________________________________________
Mr. Mahesh Bora for the appellants.
Mr. K.R. Vishnoi, Public Prosecutor for the State.
Reportable
BY THE COURT : (Per Hon'ble Mr. Vyas, J.)
Both these jail appeals arise from the judgment
dated 05.11.2004 passed by the Addl. Sessions Judge
(Fast Track) No.3, Udaipur (Camp Salumbar) in
Sessions Case No.22/2004, whereby, the trial Court
convicted the appellants for offences under Sections
148, 341, 302/149, 323 and 324, I.P.C. and sentenced
each of the appellants as under :
2
"(1) अभ यकगण कसर भसह, सज न भसह, सवत भसह,
श मत रग ब ई क दस क ध र 302/149 क
अपर ध क आ वन क र व स क दण" स तथ
2000/-र. अथ%दण" दड"त ककय त ह( । अदम
अद यग म %न 3 म ह क स ध रण क र व स अतत.
गत+ ग।
(2) अभ यकगण क दस क ध र 341 क अपर ध हत
एक म ह क स ध रण क र व स, 100/- र. अथ%दण"
स दड"त ककय त ह( । अदम अद यग म %न 7
ददन क स ध रण क र व स अतत. गत+ ग।
(3) अभ यकगण क दस क ध र 323/149 क
अपर ध क भ.ए 3 म ह क स ध रण क र व स, 500/-
र. अथ%दण" एव अदम अद यग म %न 1 म ह क
स ध रण क र व स स दड"त ककय त ह( ।
(4) अभ यकगण क दस क ध र 324/149 क
अपर ध क भ.ए 6 म ह क स ध रण क र व स, 500/-
र. अथ%दण" एव अदम अद यग म %न एक म ह क
स ध रण क र व स स दड"त ककय त ह( ।
(5) अभ यकगण क दस क ध र 148 क अपर ध क
भ.ए त न म ह क स ध रण क र व स, 500/- र.
अथ%दण", अदम अद यग म %न एक म ह क स ध रण
क र व स स दड"त ककय त ह( ।
स म/. स ए स थ-स थ च.ग । म %न म न कर न
क एव म+ द1 गई स म %न म न कर न पर पथ 2 क
स गत य व। अभ यकगण क पभ.स एव नय तयक
अभ रक म+ बबत य गई अवधध क उनक म. / स म+
सम य ज त ककय य। पकरण म+ पशद म . अप .
नह1 ककए न क सबध म+ ब द ग रन मय द अप .
तनयम नस र नष ककय व।"
Facts of the case indicate that upon oral complaint
made on 09.08.2000 by complainant Nawal Singh,
P.W.-1 (s/o deceased Anar Singh), an F.I.R. was
registered at Police Station Pahara (District Udaipur)
against the appellants and one juvenile Manohar Singh
under Sections 302/149, 341, 323, 324 and 148, I.P.C.
3
In the FIR, it is alleged by the complainant that on
09.08.2000 his whole family members were in their
residential house at village Gohawara including his
father deceased Anar Singh and mother Lali and two
sisters. At about 11.30 A.M., his father Anar Singh
went for bringing water from the well and, at the time
when he was going towards the well in his agriculture
field, the accused party including Kesar Singh (elder
brother of deceased Anar Singh), Sajjan Singh, Jaswant
Singh, Manohar Singh, Amar Singh and Ragi came on
the spot, armed with weapons viz., lathi, kudali and iron
pipe, with common intention surrounded his father and
assaulted him. At that time, his mother also rushed to
the place of the occurrence for rescuing her husband
but she was caught hold of by Smt. Ragi and all the
accused-appellants started beating his father and
mother with the weapons mentioned above.
According to the complainant, Kesar Singh was
armed with lathi, Jaswant Singh had kudali and
Manohar Singh was armed with iron pipe. Due to
severe beating, the father and mother of the
complainant fell down and lay at the spot and, at the
time when both his father and mother received injuries
they shouted for their rescue but nobody came on the
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spot for their help. His sister Geeta and he also
intervened but they were also assaulted by the accused
persons.
As per the complainant, he immediately went to
the house of P.W.-2 Sardar Singh, Sarpanch of the area
and Kure Singh who came at the spot and, thereafter,
P.W.-2 Sardara Singh gave information by telephone to
the Police Station Pahara. At that time, his father and
mother were lying in the field of maze. As per the
complainant, his father suffered fractures of his right
hand and leg and also received injuries on his head and
his mother also received severe injuries upon her body
which resulted in death of both his father and mother.
As per the allegation of the complainant, there was
dispute of land between his elder father (his father’s
elder brother) and father, due to which, the occurrence
took place and due to severe beating by the accused-
appellants his father and mother both died.
Upon the said complaint, FIR No.157/2000 was
registered at Police Station Pahara (District Udaipur)
and investigation commenced. The investigating
officer, after completing the investigation and arrest of
the appellants, filed challan against all the appellants
and one Manohar Singh, juvenile, in the Court of Judl.
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Magistrate, Kherwada from where the case was
committed to the Court of Sessions and, later on, the
same was transferred to the Addl. District Judge No.2,
Udaipur where after framing of the charges, the learned
trial Court proceeded to try the case.
Learned trial Court passed order for separate trial
of juvenile Manohar Singh, by which, his case was
transferred to the Juvenile Justice Board, Udaipur and
separate trial was conducted there. Before the trial
Court, to prove the case, the prosecution adduced
evidence and, in all, 20 prosecution witnesses were
examined by the trial Court. Thereafter, statements of
313, Cr.P.C. were recorded and 3 witnesses were
produced in defence. At the trial, number of
documents were also exhibited to prove the case from
the prosecution side. Following witnesses were
produced before the trial Court to prove the prosecution
case.
P.W.-1, Nawal Singh gave statement that on
09.08.2000, at about 11.30 A.M., when his father was
going towards well for fetching water, he was assaulted
by the appellants Kesar Singh, Amar Singh and Sajjan
Singh with lathi, Manohar Singh with iron pipe and
Jaswant Singh with kudali. When they were beating his
6
father his mother went on the spot and intervened but
she was caught by Smt. Ragi and beaten by the
appellants and the said occurrence took place in front of
his house and it resulted into death of both his father
and mother. At that time, he and his sisters P.W.-5
Asina and P.W.-6 Geeta went to the spot for protecting
their father and mother; and, thereafter, he went to the
house of Sarpanch Sardara Singh and Kure Singh.
They came on the spot to see the dead bodies of his
father and mother and a telephonic message was sent
to the police station and, thereafter, the police came to
the spot. It is stated by him that there was quarrel
between his father and elder father appellant-accused
Kesar Singh. When the police came to the spot he
gave verbal information, which is Ex.-P/1, to P.W.-17
Rajesh Kumar, Sub Inspector, Police Station Pahara.
Thereafter, necessary investigation took place on the
spot and bodies were brought to the hospital for post-
mortem and after performing the post mortem the
bodies were again brought to the police station. On
the next date, i.e. 10.08.2000, the bodies were
cremated.
In his statement, P.W.-1 Nawal Singh has
categorically stated that his father was having two
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wives, one Sajjan Devi and second deceased Lali. In
the cross-examination, P.W.-1 Nawal Singh stated that
house of Shambhoo Singh is just 100 mtr distant from
his house and other houses situated in the area belong
to Meghwal and Salvi community and those persons
residing nearby probably did not come to the spot
because they were afraid that they will be beaten by the
appellants. It is also stated that in the family of
Shambhoo Singh there are five other members
including his wife, son and two daughters but his family
is having enmity with the said family, therefore, they
did not come to the spot.
Similar type of statements were made by P.W.-5
Asina and P.W.-6 Geeta, both sisters of the complainant
and daughters of deceased Anar Singh. In their
statements also, they deposed similar story and, in all,
these three witnesses were produced as eye-witnesses.
P.W.-3, Dr. Surendra Kumar who performed the
post mortem, Ex.-P/10 and Ex.-P/11 of the bodies of
both the deceased persons and so also he examined
Geeta who received as many as 8 injuries vide Ex.-
P/12. P.W.-4 Dhan Singh is witness of the site-plan
(Panchnama) vide Ex.-P/7 and P/8 turned hostile before
the Court. Similarly, P.W.-12, Fateh Singh and P.W.-
8
13 Thavara are motbir witnesses who turned hostile
before the Court. P.W.-14 is the photographer who
took the photographs of the scene of occurrence.
P.W.-15 Gajendra Singh, Constable and P.W.-16 Bali
Ram gave statement that he registered the FIR when it
was received by him from Sub Inspector Rajesh Kumar,
P.W.-17, who is second officer of the police station
Pahara who has performed part of the investigation.
P.W.-18 Ramesh Chandra turned hostile before the
Court who was witness of the recovery of lathi. P.W.-
19 was working as A.S.I. at police station Pahara who
made endorsement upon the FIR when it was submitted
before him by Bali Ram, Constable, P.W.-16 and P.W.-
20 Duleh Singh is S.H.O. who conducted the
investigation and filed challan before the Court against
the appellants.
Learned counsel appearing on behalf of the
appellants in both these appeals argued that
prosecution has failed to prove its case beyond
reasonable doubt. All the appellants were falsely
implicated in this case and, as per the prosecution story
as narrated before the Court, it cannot be said that
there is any trustworthy evidence, upon which,
appellants can be convicted but the learned trial Court
9
has committed a grave error while convicting all the
appellants for alleged offences.
Learned counsel for the appellants submits that as
per prosecution evidence, complainant Nawal Singh,
P.W.-1; Kumari Asina, P.W.-5; and, Kumari Geeta,
P.W.-6 were produced as eye-witnesses and,
admittedly, these witnesses are son and daughters of
deceased Anar Singh. Therefore, being close relative
they can very well be termed as interested witnesses.
It is also pointed out that, in fact, the above witnesses
are son and daughters of deceased Anar Singh and
Sajjan Devi, first alive wife of deceased Anar Singh and
deceased Lali subsequently got married to Anar Singh,
therefore, Lali was step-mother of these witnesses.
Learned counsel for the appellants vehemently
argued that as per the prosecution case the occurrence
took place at 11.30 A.M. in the open undivided
agricultural field of the complainant and accused party
and number of houses are situated in the nearby area
and the occurrence took place in the morning; but, no
no investigation was made from the residents of the
area nor statement of any independent witness was
recorded by the investigating officer; meaning thereby,
to prove the prosecution case, statements of the
10
interested witnesses, son and daughters of the
deceased were recorded. The learned trial Court has
relied upon the testimony of three eye witnesses, P.W.-
1 Nawal Singh, P.W.-5 Miss Asina and P.W.-6 Miss
Geeta which is not proper because, admittedly, in the
life-time of mother of these witnesses their father late
Anar Singh contracted second marriage with deceased
Smt. Lali and for the social reasons there was quarrel in
the family of deceased Anar Singh itself, therefore, on
the basis of such type of evidence of interested
witnesses it cannot be said that the prosecution has
proved its case by leading cogent evidence. The
evidence of alleged eye-witnesses is not supported by
any independent evidence.
Learned counsel for the appellants raised an
important ground that as per provisions of the Criminal
Procedure Code as and when any FIR is registered in
the police station it is mandatory to send copy of the
FIR to the concerned Magistrate without any delay
having jurisdiction; but, here, in this case, admittedly,
on oral statement, the FIR was registered on
09.08.2000 at about 2.00 P.M. but the FIR was sent to
the concerned Magistrate on 11.08.2000 at 12 in the
noon and, for this delay, there is no explanation on
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record, therefore, it seems that all the appellants were
planted by the complainant party with connivance of the
investigating officer. In this connection, learned
counsel for the appellant while inviting the attention of
the Court towards statement of P.W.-1 Nawal Singh
submits that from conduct of this witness it can be
gathered that his father and mother both were
assaulted and murdered by the appellants but he did
not intervene and, later on, instead of going to the
police station for filing FIR, he went to the house of
Sarpanch Sardara Singh, P.W.-2 and Kure Singh.
Thereafter, Sardara Singh made telephonic information
to the police station, upon which, the police came to the
spot of occurrence; meaning thereby, it is apparently
clear that for the offence committed at about 11.30
A.M., neither the complainant went to the police station
nor has informed the police directly but it is stated by
him in his statement before the Court that he informed
Sarpanch Sardara Singh, P.W.-2. Learned counsel for
the appellants vehemently contended that upon the
statement of such type of witness it is not safe to
convict the appellants because he is hiding correct facts
and has framed fabricated story and implicated whole
family members of accused Kesar Singh.
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It is further argued by learned counsel for the
petitioner that there is no explanation for sending the
FIR with delay of two days and there is further no
explanation why the complainant did not directly go the
police station. Similarly, when such type of serious
occurrence took place, first of all, any prudent man
would immediately shout for rescue. But, here, in this
case, as per testimony of this witness, his neighbourers
were standing and watching the occurrence but did not
come on the spot for protection, in this view of the
matter, the evidence of such type of statement is
required to be ignored, therefore, the learned trial Court
has committed error while relying upon the testimony of
Nawal Singh, P.W.-1.
In these appeals, following specific grounds have
been taken by the appellants upon which it is argued by
learned counsel for the appellants that the prosecution
has failed to prove its case beyond reasonable doubt.
Further, it is argued that in criminal law, the
prosecution is required to explain each and every
allegations by way of leading cogent and trustworthy
evidence and should fair before the Court. Further, it is
argued that it is the duty of the prosecution to prove
before the Court that prosecution story is probable and
13
there is material evidence on record to prove the
prosecution case. The following points are required to
be taken into consideration for adjudicating these
appeals :
(1) Whether delay in sending FIR to the
concerned Magistrate after two days is fatal to
prove the prosecution case.
(2) Whether non-examination of the
independent witnesses is material discrepancy
and fatal to prove the case.
(3) Whether prosecution has proved its case
beyond reasonable doubt by leading independent
evidence and has proved the recovery of weapons
before the Court by independent witnesses ?
(1) Whether delay in sending FIR to the
concerned Magistrate after two days is fatal to
prove the prosecution case : Upon perusal of the
record of the case, it is revealed that occurrence took
place on 09.08.2000 admittedly at 11.30 a.m. and at
that time, complainant PW-1 Naval Singh, PW-5 Anisha
and PW-6 Gita were present at the seen of occurrence
and after incident instead of filing FIR to the nearest
police station, the complainant PW-1 Naval Singh went
14
to the house of Sarpanch PW-2 Sardara Singh and
thereafter as per prosecution story Sardara Singh
informed the police station – Pahada by telephonic
message that an occurrence took place and as per
statement of PW-2 Sardara Singh, police came on spot
as per his information given on telephone at 2 p.m. on
09.08.2000 and thereafter upon oral statement of PW-1
Naval Singh, the FIR was written by the Investigating
Officer PW-17 Rajesh Kumar on spot. Thereafter, the
written FIR duly signed by the complainant was sent to
the police station for registering the case by hand
through PW-16 Bali Ram, Constable. PW-16 Bali Ram
reached the police station Pahada and handed over the
said written FIR Ex.P-13 to PW-19 Ishwar Singh who
made endorsement upon the FIR and thereafter FIR was
registered and constable was sent back upon the place
of occurrence. Meaning thereby, FIR was registered in
the Police Station Pahada at about 3 p.m. and the said
FIR was to be sent to the concerned Magistrate
immediately but same was not sent to the concerned
Magistrate on 09.08.2000 and 10.08.2000 and
subsequently it was received in the Court of Civil Judge
(J.D.) on 11.08.2000 at about 12 a.m. Meaning
thereby, there was a gross delay in sending the FIR to
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the concerned Magistrate and it is also one of the
important fact of the case that site plan Ex.2 was
prepared on 09.08.2000 at about 2.30 p.m. and all
other memos were prepared in between 2 p.m. to 5
p.m., which is evident from Ex.P/3, Ex.P/4, Ex.P./5,
Ex.P/6, Ex.P/7, Ex.P/8 and Ex.P/9 and thereafter bodies
of both the deceased Anar Singh and Mst. Lali were
brought to the hospital for post mortem at about 5.45
p.m. and on 09.08.2000 itself, post-mortem was
conducted and eye witness Ms. Gita was also medically
examined and here injury report was prepared by the
Medical Officer of the Primary Health Centre, Kherwada
on the same day. Meaning thereby, the investigation
took place on 09 & 10 of August, 2000 and most of the
investigation of the site was made before sending FIR to
the concerned Magistrate on 11.08.2000 and counsel
for the appellants is raising voice that with the
connivance of the police, a concocted and false story
was framed in which all the family members have been
indulged in this case whereas PW-1 Naval Singh, Gita
and Anisha, who are none else but son and daughters of
deceased Anar Singh were included as eye witnesses to
prove the prosecution case. Therefore, all the above
facts clearly reveals that investigation was not
16
conducted in proper manner and prosecution has tried
to hide the material evidence from the Court, therefore,
the FIR was sent after two days to the concerned
Magistrate. The allegation of defence side is that all the
appellants have been falsely implicated and no prudent
man can accept such type of prosecution story in which
it is stated that though occurrence took place in the
morning at about 11 a.m. but none of the independent
witnesses came forward to give their statements and
only interested witnesses, who are son and daughters of
deceased Anar Singh, gave their statements to prove
the prosecution case.
(2) Whether non-examination of the
independent witnesses is material discrepancy
and fatal to prove the case : As per learned counsel
for the appellants, prosecution has failed to proved its
case beyond reasonable doubt because as per
prosecution story, the occurrence took place at 11.30
a.m. on 09.08.2000 and it is also one of the important
fact that occurrence took place in the area where so
many houses are in existence so also as per the
statement of prosecution witnesses so many persons
were watching the incident but Investigating Officer has
not cared to take evidence of independent witnesses
17
and challan has been filed only on the basis of
interested witnesses PW-1 Naval Singh, PW-5 Anisha
and PW-6 Gita, who are son and daughters of deceased
Anar Singh. As per learned counsel for the appellants
Smt. Lali who died on the spot along with Anar Singh is
step mother and their own mother Smt. Sajjan Devi is
alive but in the life time of Smt. Sajjan Devi, Naval
Singh remarried with deceased Lali, who was residing
with him, therefore, it is also one of the possibility that
these witnesses themselves committed offence and with
the intention to sent all the appellants out from the
agricultural field, this false case has been registered,
that too, without any independent witnesses. It is the
duty of the investigating officer to investigate the case
in proper manner and to collect the cogent evidence to
prove the prosecution case but it appears from whole of
the prosecution case and the statement of PW-17 and
PW-20 that in very casual manner, they conducted
investigation and filed challan on the basis of two
interested witnesses and without leading any evidence
of any independent witnesses but though occurrence
took place in the thickly populated area and as per the
prosecution story, houses of so many persons are
situated within the radius of 300 to 500 meters and
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occurrence took place in the morning at about 11.30
a.m. Further, instead of rushing to the police station as
per the prosecution story PW-1 Naval Singh went to the
house of Sarpanch, who gave information on telephone
to the police that occurrence took place but
investigating Officer PW-17 Rajesh Kumar has given his
statement altogether different with regard to receiving
information of incident. PW-17 Rajesh Kumar stated in
his statement that he has received information at bus
stand by some unknown person, therefore, he rushed to
the place of occurrence whereas PW-2 Sarpanch
Sardara Singh has made statement that police came on
spot as per information given by him on telephone.
Meaning thereby, it was the duty of the investigating
officer to come out with the correct facts before the
Court but neither PW-17 nor PW-20 Dule Singh
disclosed whether any telephone was received at police
station Pahada which is said to be made by PW-2
Sarpanch Sardara Singh for giving first information
report. Therefore, as per learned counsel for the
appellants the prosecution has failed to prove its case
and falsely implicated the innocent persons in this false
case and suppressed the correctness of the information,
therefore, the judgment impugned deserved to be
19
quashed.
(3) Whether prosecution has proved its case
beyond reasonable doubt by leading independent
evidence and has proved the recovery of weapons
before the Court by independent witnesses ?
Learned counsel for the appellant submits that
prosecution has failed to prove its case beyond
reasonable doubt. It is submitted that there is no
independent eye witnesses produced by the prosecution
to prove the case. There are three alleged eye
witnesses, viz. P.W.-1 Nawal Singh (son of deceased),
P.W.-5 Asina and P.W.-6 Geeta (both daughters of the
deceased). There is none other independent witness
produced by the prosecution; whereas, as per
statements of all these witnesses, the occurrence took
place at 11.30 A.M., that too, in the area where so
many houses are situate and many persons were
watching the incident.
Further, it is argued that none of the witnesses of
recovery of weapons has proved the case of
prosecution. More so, all the witnesses of recovery
have turned hostile before the Court, therefore, when
recovery of alleged weapons is not proved and
independent witnesses have not been produced by the
20
prosecution, then, obviously the evidence which is led
by the prosecution rests on flimsy footing for arriving at
the conclusion of guilt against the accused, therefore,
before the Court the prosecution evidence deserves to
be discredited because it is not safe to convict innocent
persons on the basis of so called evidence which is not
even proved by the prosecution before the trial Court.
Learned counsel for the appellants further argued
that in this case one iron pipe was recovered from
Manohar Singh vide Ex.-P/30, whose separate trial was
conducted before the Juvenile Justice Board, therefore,
nothing is required to be adjudicated upon that in this
appeal and his appeal is not before this Court. But, it
is pointed out by learned counsel for the appellants that
from Jaswant Singh appellant, as per the prosecution,
one lathi (wooden pole or staff as weapon) was
recovered in presence of witnesses Nathu Singh and
Dhan Singh; but, Nathu Singh was not produced before
the Court and Dhan Singh, P.W.4 turned hostile before
the Court. Further it is submitted that as per the
prosecution story itself lathi recovered from Jaswant
Singh was not stained with any blood.
Similarly, lathi recovered from Sajjan Singh vide
Ex.-P/20, that, too, was not stained with blood and the
21
two witnesses before whom the said lathi was alleged to
have been recovered, Ramesh Chandra, P.W.-18 and
Thavara, P.W.-13, turned hostile before the Court and
they did not support the prosecution story of alleged
recovery of lathi made from Sajjan Singh. Further, it is
contended that no weapon whatsoever was recovered
from appellant-accused Smt. Ragi, wife of Kesar Singh.
Therefore, obviously these accused have been falsely
implicated.
With regard to accused-appellant Kesar Singh, as
per the prosecution story, one lathi was recovered from
him vide Ex.-P/15 in presence of witnesses Dhan Singh,
P.W.-4 and Fateh Singh, P.W.-12 but both these motbir
witnesses turned hostile before the Court and they did
not prove the recovery of lathi from Kesar Singh;
meaning thereby, recovery of lathi alleged to be stained
with blood has not been proved by the prosecution
before the Court. Though the said lathi was sent for
chemical examination and, as per report of chemical
examiner, Ex.-P/41, the said lathi was found to be
stained with blood; but, when recovery of lathi from
Kesar Singh has not been proved, then, trial Court has
committed error while convicting Kesar Singh for
offence under Section 302, I.P.C.
22
It is, therefore, vehemently contended by learned
counsel for the appellants that it is manifestly clear that
conviction of the appellat-accused in this case is based
by the trial Court only upon the testimony of P.W.-1
Nawal Singh, P.W.-5 Asina and P.W.-6 Geeta (all three
son and daughters of deceased Anar Singh (deceased
Smt. Was step mother of these witnesses); meaning
thereby, on the basis of such type of interested
witnesses whose testimony was not corroborated by the
prosecution before the trial Court, no conviction can be
made but the learned trial Court has committed grave
error while convicting all the appellants for offence
under Section 302, I.P.C., read with Section 149, I.P.C.
It is vehemently argued by learned counsel for the
appellants that there is no evidence on record with
regard to motive or intention. In the absence of such
important ingredient which is essential to prove offence
of murder it cannot be presumed that offence has been
committed under Section 302, I.P.C. It is also argued
that as per the post mortem report of deceased Anar
Singh, Ex.-P/10, although there were 15 injuries
including lacerated wounds and bruises; but, out of
these 15 injuries, 5 are bruises, 6 are lacerated wounds
and except injury No.1, all the injuries are not upon any
23
vital part of the body and these injuries have been
inflicted upon leg or fore-arm or wrist and other non-
vital parts of the body. Further, as per the opinion of
the doctor the cause of death is head injury and
multiple injuries all over the body, therefore, upon
perusal of the injuries mentioned in the post mortem
report, even if it is presumed that occurrence took
place, no offence under Section 302, I.P.C. took place.
Similarly, vide Ex.-P/11, post mortem report of
Smt. Lali, second wife of deceased Anar Singh, there is
mention of 8 injuries and none of the injuries is found to
have been inflicted upon vital part of the body and, as
per the opinion of the medical board, the deceased died
due to shock caused by severe bleeding; meaning
thereby, as per the injuries mentioned in the post
mortem report, it can be said that no conviction can be
made for offence under Section 302, I.P.C. even if it is
presumed that the prosecution has proved its case.
Therefore, when recovery is not proved and no
independent witness is produced before the trial Court
to corroborate the version adduced in evidence by P.W.-
1 Nawal Singh, P.W.-5 Asina and P.W.-6 Geeta (all
children of the deceased) and, further, when there is no
evidence with regard to motive or intention on record,
24
then, it can be said that the appellants have been
wrongly convicted for offence under Section 302, I.P.C.
Therefore, all these appellants are entitled for acquittal
because the prosecution failed to prove its case at the
trial beyond reasonable doubt.
Learned counsel for the appellants invited
attention of the Court towards following judgments of
the apex Court in support of his submission :
(1) Delay in sending FIR to Magistrate and non-
examination of independent witnesses :
i. AIR 2002 SC 1949 (2002 Cri.L.J. 2623)
ii. JT 2000 (8) SC 513 ((2001) 9 SCC 704)
iii. AIR 1976 SC 2423 ((1976) 4 SCC 355)
iv. 1994 SCC (Cri.) 1551.
(2) Suppression of First Information :
i. AIR 2005 SC 1805 ((2005) 10 SCC 387)
(3) When discrediting testimony of witnesses :
i. AIR 2009 SC 132 (2008 (13) SCALE 350)
((2008) 10 SCC 615)
ii. AIR 1976 SC 2147 (1976 Cri.L.J. 1704)
iii. 1987 (2) WLN 732.
After giving thoughtful consideration to the
material on record and arguments advanced by learned
counsel for the appellants, it is abundantly clear that to
25prove the case, 3 eye witnesses have been produced
before the Court by the prosecution, namely P.W.-1
Nawal Singh, P.W.-5 Kumari Asina and P.W.-6 Kumari
Geeta. Upon perusal of their statements before the
Court, it is obvious that all these three witnesses are
stating altogether different story with regard to the
occurrence which took place at the site and they are
admittedly son and daughters of the deceased persons.
Nawal Singh, P.W.-1, in his examination in chief, stated
that Kesar Singh, Sajjan Singh, Amar Singh, Jaswant
Singh, and Manohar Singh, they all belaboured his
father with lathi, kudali and iron pipe and accused Ragi
caught hold of his mother and gave fist and kick blows
upon her. According to this witness, all these accused
inflicted injuries upon the bodies of his father and
mother. It is specifically stated by Nawal Singh, P.W.-1
that “मर1 म क सबस पह. कशर भसह न म र थ । सब न क=र
एक स थ म र थ ।” meaning thereby, there is no specific
allegation against any of the persons for inflicting any
specific injury.
With regard to statement of P.W.-5 Kumari Asina,
she has stated in her statement that Kesar Singh,
Jaswant Singh, Sajjan Singh, Manohar Singh, Amar
Singh and Smt. Ragi inflicted injuries to her father and
26
mother which resulted into their death. It is specifically
stated by her that Kesar Singh has inflicted injury upon
the head of her father and Manohar Singh inflicted
injury upon his left hand and Jaswant Singh inflicted
injury upon the right had of her father and Sajjan Singh
and Amar Singh inflicted injury upon the back of her
father and Ragi caught hold of her mother and all these
persons collectively gave blows to her father and
mother and due to the injuries they died.
Kumari Geeta, P.W.-6 stated that Kesar Singh,
Jaswant Singh, Amar Singh, Sajjan Singh and Smt.
Ragi, they all caused injuries to her father and mother
and specifically stated that all these persons inflicted
injury upon the head of her father and mother. Geeta,
P.W.-6 specifically stated that Kesar Singh inflicted head
injury to her mother.
Before perusing their cross-examination, it is
worthwhile to observe that none of the alleged three
eye-witnesses Nawal Singh, P.W.-1, Asina, P.W.-5 and
Geeta, P.W.-6 is corroborating their statements and all
these persons are giving different version before the
Court. On this basis only it can be said that to rely
wholly upon the testimony of these witnesses it is not
proper to convict the appellants for offence under
27
Section 302, I.P.C.
One important fact in the case is that on the
record there is statement of D.W.-1 Babulal and D.W.-2
Ramesh as well as D.W.-3 Kawa. These 3 witnesses
were produced before the Court from the defence side
and, out of these three witnesses, Babulal, D.W.-1 and
Ramesh, D.W.-2 are independent eye witnesses. As
per their statements, on the date of occurrence, they
heard noise of quarrel in the agricultural field of Kesar
Singh and they rushed to the field and saw that
deceased Anar Singh and his wife were standing there
and quarrel was going on between Anar Singh, his wife
and appellant Jaswant Singh and Manohar Singh. At
that time, they heard that Manohar Singh asked Anar
Singh why he had let loose his animals in their field to
destroy their crop. At that time, Anar Singh (deceased)
became angry and quarrel took place. These witnesses
further stated that they rushed to the house of Kesar
Singh which is just nearby the place of occurrence
where nobody was in the house and, at that time,
Ramesh, D.W.-2 was also present there. It is stated by
D.W.-1 Babulal that Kesar Singh, Sajjan Singh and Smt.
Ragi were not present at the scene of occurrence.
Similar statement is also made by Ramesh Lohar, D.W.-
28
2. Kawa, D.W.-3 stated that on the date of occurrence
his elder father’s daughter Ragi was in his village
Katarwas. In this view of the matter, it appears that as
per the independent witnesses produced by the defence
they are not denying the occurrence which took place
on 11.30 A.M. on 09.08.2000; but, their clear
statement is that only 2 accused persons viz., Jaswant
Singh and Manohar Singh were at the spot and quarrel
took place in between accused Jaswant Singh and
Manohar Singh on the one side and deceased Anar
Singh and his wife Smt. Leela on the other. It is also
stated that Geeta, P.W.-6 intervened in the quarrel and
she also received certain injuries. Thereby meaning
that the defence is also not disputing the occurrence;
but, as per statements of Babulal, D.W.-1 and Ramesh,
D.W.-2, only Jaswant Singh and Manohar Singh were
present at the spot. In their cross-examination also,
they made specific statement that not only these
witnesses but many other persons saw Jaswant Singh,
Manohar Singh, deceased Anar Singh and deceased
Smt. Leela when they were quarreling and it is
specifically stated that no other accused than Jaswant
Singh and Manohar Singh was at the spot. These
witnesses were thoroughly cross-examined by the
29
prosecution but nothing could be elicited to disbelieve
their testimony; meaning thereby, in this case,
occurrence is not disputed but how it took place and
whether it is proved or not is the precise question.
In this case, challan was not filed against Amar
Singh whose name was specifically mentioned in the FIR
by Nawal Singh, P.W.-1 and Asina, P.W.-5 and Geeta,
P.W.-6. Challan was filed against Kesar Singh, Jaswant
Singh, Sajjan Singh, Manohar Singh and Smt. Ragi.
Separate trial took place before the Juvenile Justice
Board so far as accused Manohar Singh.
Upon scanning the entire evidence available on
record, it emerges that from the prosecution side there
are three eye-witnesses P.W.-1 Nawal Singh, upon
whose statement the FIR was registered, P.W.-5 Kumari
Asina and injured eye-witness P.W.-6 Geeta (both
daughters of deceased Anar Singh), so also, from the
defence side, statements of 2 independent witnesses
Babulal, D.W.-1 and Ramesh Lohar, D.W.-2 are on
record. All these prosecution and defence witnesses
are supporting the fact that the incident took place but
the prosecution witnesses Nawal Singh, P.W.-1, Kumari
Asina, P.W.-5 and Kumari Geeta, P.W.-6 allege that
there were five accused namely, Kesar Singh, Amar
30
Singh, Sajjan Singh, Manohar Singh and Smt. Ragi; but,
with regard to their role there is material contradiction
for inflicting injuries, so also, with regard to using
weapons. Likewise, police did not file any challan
against Amar Singh whose name was specifically
mentioned in the FIR, so also, in the statements of
these three witnesses, Nawal Singh, P.W.-1, Asina,
P.W.-5 and Geeta, P.W.-6. Further, in the statements
of these three prosecution eye-witnesses, there is no
allegation with regard to inflicting any injury with
weapon against Smt. Ragi and only her presence has
been shown by these witnesses.
In the statements of Babulal, D.W.-1 and Ramesh,
D.W.-2, it is specifically stated by these witnesses that
occurrence took place due to letting loose of the
animals of deceased Anar Singh and he became angry;
at that time, quarrel took place in between accused
Jaswant Singh (and Manohar Singh, who is not before
this Court in these appeals) and Anar Singh and Smt.
Lali but, at that time, the other accused were not
present at the scene of occurrence. These two defence
witnesses do not deny the incident but they stated that
only two accused Jaswant Singh and Manohar Singh
were present and the occurrence took place at the spur
31
of moment in the heat of anger. Therefore, motive or
intention cannot be gathered nor it can be said that
there was collective conspiracy for the purpose of
committing offence under Section 302, I.P.C.
After assessing the evidentiary value of
statements of these two defence witnesses, D.W.-1
Babulal and D.W.-2 Ramesh Lohar, we are of the
opinion that the occurrence took place and, as per
statement of injured witness Geeta, P.W.-6, it is
abundantly clear that injuries were sustained to
deceased Anar Singh and Smt. Lali by all appellants
except Smt. Ragi; but, there is no evidence on record to
prove motive. The enmity with regard to land was not
with the accused party but with one Shambhoo Singh
whose house is said to be near the place of occurrence.
In the circumstances, we are unable to discredit the
testimony of injured eye-witness Kumari Geeta, P.W.-6
who is daughter of deceased Anar Singh but, upon her
statement, it is not established that there was any
motive or intention of murder.
As indicated above, there was gross delay in
registration of the FIR. Therefore, it is obvious that the
FIR was registered after discussion with family
members. It is also worthwhile to observe here that as
32
per facts of the case Nawal Singh, P.W.-1, author of the
FIR, did not choose straight away to approach the police
and, rather, he first went to the house of Sarpanch
Sardara Singh, P.W.-2. In his statement, it is stated by
Sardara Singh, P.W.-2 that Nawal Singh did not name
any other person except his elder father Kesar Singh.
In this view of the matter, we are of the opinion that
quarrel took place at the spur of the moment and there
was no motive or conspiracy for committing murder.
Our conclusion is supported by the fact that none of the
witnesses of recovery has proved the recovery of
alleged weapons from all the accused. Fact however
remains that the occurrence took place and number of
injuries were inflicted in the scuffle that ensued the
quarrel. As per the post mortem report of deceased
Anar Singh out of all other injuries only one injury was
inflicted upon head with blunt weapon which resulted
into his death; and, as per post mortem report of
deceased Lali, none of the injuries was inflicted upon
vital part of the body and she died due to shock caused
by severe bleeding.
In this view of the matter, while assessing the
testimony of the prosecution as well as defence
witnesses, we are of the opinion that the incident
33
occurred at the spur of the moment and there was no
motive or intention to commit murder on the part of the
accused. Therefore, as per the principle laid down by
the Hon’ble Supreme Court in various pronouncements,
the accused appellants are not guilty of committing
offence under Section 302, I.P.C. but, at the most, they
can be held liable for committing offence under Section
304, Part – I, I.P.C. because Smt. Lali died due to
profuse bleeding resulting from multiple injuries which
were inflicted upon non-vital parts of her body and
deceased Anar Singh died due to head injury; but, none
of the witnesses has proved as to which injury was
caused by which accused and who caused the head
injury upon deceased Anar Singh. Therefore, it is
unsafe to convict the appellants for commission of
offence under Section 302, I.P.C.
While arriving at the aforesaid conclusion, we are
fortified by our view taken in the recent judgment
rendered in D.B. Criminal Jail Appeal No.1293/2003,
decided on 05.01.2010, wherein, while following the
principle laid down by Hon’ble Supreme Court in the
judgments delivered in the case of Lachman Singh Vs.
State of Haryana, (2006) 10 SCC 524 and Harendra
Nath Borah Vs. State of Assam, 2007 AIR SCW 4631, in
34
which, Hon’ble apex Court has clearly set out the
difference between murder and culpable homicide not
amounting to murder. While applying the principle laid
down by the apex Court in this case also, we are of the
opinion that on the basis of the fact that recovery of any
weapon is not proved, so also, independent defence
witnesses Babulal, D.W.-1 and Ramesh Lohar, D.W.-2
gave their statements that though the occurrence took
place but it was due to the reason that some animals
were let loose in the field of deceased Anar Singh and
he became angry coupled with the fact that none of the
prosecution witnesses has indicated any previous
enmity in between the parties, therefore, the
prosecution has not adduced cogent evidence to prove
the commission of offence of murder to inflict
punishment under Section 302, I.P.C.
Of course, upon re-appreciation and examination
of the entire evidence on record, it is revealed that
though offence is not made out under Section 302,
I.P.C. but the appellant-accused are, however, liable for
culpable homicide not amounting to murder under
Section 304, Part – I, I.P.C. for the death of deceased
Anar Singh and Smt. Lali. In this view of the matter,
we are of the view that finding of the trial Court with
35
regard to guilt under Section 302, I.P.C. is not
sustainable in the eye of law. Appellant-accused,
however, deserve to be held responsible and liable for
commission of offence under Section 304, Part – I,
I.P.C.
As a result of the foregoing discussion, both these
appeals partly succeed and the same are partly allowed.
In D.B. Criminal (Jail) Appeal No.1119/2004, filed by
Jaswant Singh, Kesar Singh and Sajjan Singh,
conviction of the appellants for offence under Section
302, I.P.C. is altered to offence under Section 304,
Part-I, I.P.C. while maintaining rest of the order of
punishment passed by the trial Court including fine. To
this extent, sentence of life imprisonment imposed upon
each of the appellants is set aside. Appellant-accused
Kesar Singh is in custody since 16.08.2000, Jaswant
Singh since 10.08.2000, Sajjan Singh since 07.09.2000
and all of them are still in custody and they have served
the sentence for more than nine years, therefore, each
of these appellants is sentenced to the period of
imprisonment already undergone by them. These
appellants are in jail, therefore, they shall be released
forthwith provided each of them has satisfied the
penalty of fine as imposed by the trial Court, if not
36
required in any other case.
So far as appellant-accused Smt. Ragi in D.B.
Criminal (Jail) Appeal No.1180/2004 is concerned, upon
examination and re-appreciation of the entire evidence
on record, we are of the opinion that there is no specific
allegation by any of the witnesses for inflicting any
specific injury against her. At the most, her physical
participation in the occurrence is liable to be found on
the basis of the evidence coming on record. Therefore,
while maintaining conviction for offences under Sections
323/149 and 341, I.P.C. passed by the trial Court, her
conviction under Sections 302, 324/149 and 148, I.P.C.
is set aside. Accordingly, her appeal is partly allowed.
Sentence of life imprisonment passed against her by the
trial Court is set aside. Sentences passed against her
for offence under Sections 341 and 323/149, I.P.C.
stand altered to the period of imprisonment already
undergone by her. She is on bail. Her bail bonds
accordingly stand discharged.
(Gopal Krishan Vyas) J. (A.M. Kapadia) J.
Ojha, a.