{"id":196196,"date":"1996-10-01T00:00:00","date_gmt":"1996-09-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/hari-singh-anr-vs-state-of-rajasthan-on-1-october-1996"},"modified":"2019-02-24T04:01:14","modified_gmt":"2019-02-23T22:31:14","slug":"hari-singh-anr-vs-state-of-rajasthan-on-1-october-1996","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/hari-singh-anr-vs-state-of-rajasthan-on-1-october-1996","title":{"rendered":"Hari Singh & Anr vs State Of Rajasthan on 1 October, 1996"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Hari Singh & Anr vs State Of Rajasthan on 1 October, 1996<\/div>\n
Author: Nanavati<\/div>\n
Bench: G.N. Ray, G.T. Nanavati<\/div>\n
           PETITIONER:\nHARI SINGH & ANR.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF RAJASTHAN\n\nDATE OF JUDGMENT:\t01\/10\/1996\n\nBENCH:\nG.N. RAY, G.T. NANAVATI\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t      J U D G M E N T
\n     NANAVATI, J.\n<\/p>\n
     This is an appeal by special leave against the judgment
\nand order  passed by the High Court of Rajasthan in Criminal
\nAppeal Nos.  239 of  1983 and  388 of 1985. RCA. No. 239 was
\nfiled by the four convicted accused whereas RCA. No. 388 was
\nfiled by  the State  against the  acquittal of the remaining
\naccused and  also against  the acquittal of Accused Ramphool
\nunder Section 302 PIC.\n<\/p>\n
     Briefly stated, the prosecution case was that there was
\nenmity between\tthe family  of the accused and the family of
\nBabu Sing. Since 3 or 4 days before 29.7.81 the accused were
\nthreatening to\tkill members  of the family of Babu Sing and
\nhis brother  P.W.1. Harbhajan.\tOn  29.7.81  at\t about\t6.00
\nO’clock in  the morning\t while Buddha,\tson of Harbhajan was
\nreturning  from\t hillside  with\t milk  all  the\t 21  accused
\nassaulted him  and tried  to kill  him.\t Hearing  his  cries
\nHarbhajan and  his brother  Babu Singh\tran to\this  rescue.
\nWhile they  reached near  the house  of one  Amar Singh, the
\naccused who  were coming  from the  opposite side  encircled
\nBabu and  started beating  him. Accused\t Hare Sing  gave 2-3
\nblows with  his ‘lathing’  (stick)  on\tthe  head  of  Babu.
\nAccused Where  Sing gave  one or  two lathing  blows on\t his
\nlegs. Accused  Brijendra also  gave 3  or 4 ‘lathi’ blows on
\nthe person  of Babu. So Babu fell down an thereafter all the
\naccused\t except\t  Shrawan  and\t Mohar\tSingh  gave  further
\n‘lathing’ blows\t to him.  At that  time\t Accused  Shrew\t and
\nMohair Sing  were saying that Babu Sing should be killed and
\nthey would  bear the  expenses for defending them. Meanwhile
\nhearing shouts\traised by  Y, Y\t Mantilla and P.W.3 Bharosey
\ncame there.  Believing that  Babu was  dead the accused left
\nthat place  and went  to the  house of\tBabu. Accused Gopal,
\nBenai Singh,  Bhanwar and Dharam Singh entered the house and
\ntook away  the gun and belt of cartridges belonging to Babu.
\nWhile his wife protested Accused Gopal and Dharam Singh gave
\n‘lathi’ blows  and Accused Benai Singh and Bhanwar gave fist
\nblows to  her. Harbhajan  took Babu  to Bayana\tHospital. By
\nthat time  his son Buddha was also removed to that hospital.
\nHarbhajan then\twent to the house of one Chandra Shekar, got
\na complaint regarding the incident prepared and went with it
\nto the\tpolice station.\t He reached  there at  6.45 A.M. and
\ngave the  complaint. On\t its basis the F.I.R. (Exh. P-1) was
\nprepared by  P.W.15  S.H.O.  Kailash  Bhagwati.\t The  police
\nofficer then went tc the hospital and recorded the complaint
\nof Buddha  (Exh. D-5)  with respect  to the  assault on him.
\nAfter completing  the investigation the police chargesheeted
\nall the\t 21 accused. They were thereafter tried in the Court
\nof Additional  Sessions Judge,\tBharatpur for  the  offences
\npunishable under Sections 147, 148, 307 and 302 I.P.C. Those
\naccused who  had entered  the house  of Babu and removed his
\ngun and\t belt  of  cartridges  were  also  charged  for\t the
\noffences  punishable  under  Sections  454  and\t 380  I.P.C.
\nAccused Shrawan\t and Mohar  Singh who had not taken any part
\nin  beating   Babu  Singh  were\t charged  for  the  offences
\npunishable under Sections 147, 307 read with Section 149 and
\nSection 302 read with Section 149 I.P.C.\n<\/p>\n
     In order  to prove\t the assault on Babu the prosecution
\nrelied mainly  upon the\t evidence of P.W.5 Buddha, his dying
\ndeclaration and\t P.W.9 Jai  Singh. Jai Singh did not support
\nthe  prosecution  and  was  declared  hostile.\tThe  learned
\nAdditional Sessions Judge found the evidence of P.W.5 Buddha
\nsuffering from some major contraditions and infirmities and,
\ntherefore,  believed  his  evidence  only  with\t respect  to
\nAccused Hari Singh, Heera Singh and Ramphool. As regards the
\nfatal assault  on  Babu\t the  prosectuion  relied  upon\t the
\nevidence of  P.W.1 Harbhajan, P.W.2 Mathalli, P.W.3 Bharosey
\nand P.W.4 Bishni. In view of the admission made by Bishni in
\nher evidence  that she\thad not\t seen  the  killing  of\t her
\nhusband the  learned Additional\t Judge held that she was not
\nan eye\twitness. The  learned Judge  found the\tevidence  of
\nremaining three\t eye-witnesses believable as regards Accused
\nHari Singh,  Heera  Singh  and\tBrijendra  but\tin  view  of
\ncontraditions  and  inconsistencies  in\t their\tevidence  as
\nregards the remaining 17 accused he did not think it safe to
\naccept it  and, therefore, gave benefit of doubt to them. As
\n24 injuries  were caused  to Buddha  out  of  which  3\twere
\ngrievous the learned trial judge convicted Accused Ramphool,
\nHari Singh  and Heera Singh under Section 307 I.P.C. He also
\nconvicted Accused  Hari Singh,\tHeera  Singh  and  Brijendra
\nunder Section  302 I.P.C.  for causing\tdeath of Babu. Thus,
\nAccused Hari  Singh and\t Heera Singh  were convicted for the
\noffences punishable  under  Sections  302  and\t307  I.P.C.,
\naccussed Brijendra  under Section  302 I.P.C.  and  Ramphool
\nunder  Section\t302  I.P.C.  These  convicted  accused\twere
\nacquitted of all the other charges.\n<\/p>\n
     The four convicted accused filed Criminal Appeal No.239
\nof 1983\t challenging their  conviction. The  State filed  an
\nacquittal appeal  against the 17 accused who were completely
\nacquitted and also against the acquittal of Accused Ramphool
\nunder Section  302 I.P.C.  Leave to  appeal was granted only
\nagainst some of them but it is not necessary now to refer to
\nthat aspect  as the  acquittal appeal  was dismissed  by the
\nHigh Court  and that  order has become final. The High Court
\nafter reappreciating  the evidence  confirmed the conviction
\nof Hari\t Singh and  Brijendra under  Section 302  I.P.C. for
\ncausing death  of Babu as it found that the evidence against
\nthem was  quite consistent  and sufficient.  The High  Court
\nacquitted Heera\t Singh as  not found  that his\tname was not
\nmentioned in the F.I.R. and he was falsely implicated as one
\nof the\tpersons who  had given\tlathi blows to the deceased.
\nWith respect  to the  assault on  Buddha the High Court held
\nthat his  evidence suffered  from material improvements and,
\ntherefore, it  was not at all safe to rely upon his evidence
\nfor convicting\tany  accused.  The  High  Court,  therefore,
\nacquitted all  the three  accused who  were convicted by the
\ntrial court  under Section  307 I.P.C.\tThe High  Court also
\ndisbelieved the evidence with respect to the third incident,
\nnamely, accused\t going to  the house of Babu and taking away
\nhis gun\t and belt  of cartridges after causing some injuries
\nto his wife Bishni.\n<\/p>\n
     The learned  counsel appearing  for the two appellants,
\nwhose conviction under Section 302 has been confirmed by the
\nHigh  Court,   submitted  that\tthe  High  Court  failed  to
\nappreciate that\t the F.I.R.  (Exh. P-1)\t could not have been
\nrecorded at  6.45 A.M. in view of certain admissions made by
\nP.W.1 Harbhajan\t and that  in all  probability the complaint
\nagainst the accused was recorded after a complaint was given
\nby Accused  Gopal against Babu, Harbhajan, Buddha and others
\nat the\tBayana Police  Station\twith  respect  to  the\tsame
\nincident. He  also submitted that the courts below failed to
\nappreciate that\t Exh. D-5 was the first information in point
\nof time\t and the  investigation should\tbe  deemed  to\thave
\nstarted on the basis of the said information and, therefore,
\nExh. P-1  could not  have been treated as F.I.R. It was also
\ncontended that P.W.3 Bharosey was not an independent witness
\nand, therefore,\t it was not proper to convict the appellants
\nrelying upon  the evidence of two interested witnesses only.
\nIt was\talso contended\tthat the  courts below\tcommitted an
\nerror in  not believing\t the defence  of the appellants that
\ninjuries were  caused by  them in exercise of their right of
\nprivate\t defence,  particularly\t when  it  was\tproved\tthat
\nAccused Hari  Singh had\t received two injuries on his person
\nduring that incident and one of them was a fracture. Lastly,
\nit was\tcontended that\tthe evidence  does not justify their
\nconviction under  Section 302  I.P.C. and,  therefore, their
\nconviction under that Section is improper and illegal.\n<\/p>\n
     After going  through the evidence we find that there is
\nno substance  in any  of the contentions raised on behalf of
\nthe appellants.\t the first incident, that is, the assault on
\nBabu took place at about 6 A.M. according to the prosecution
\nevidence. Even in the cross-complaint filed by Accused Gopal
\ntime of\t the incident  was mentioned  as 6  A.M. though\t his
\nversion about  the incident  was different. It was submitted
\nthat P.W.1   Harbhajan in his evidence has stated that after
\nthe accused  left he  took his brother Babu to the hospital,
\nthen went  to the  house of  Chandra Shekar, got a complaint
\nregarding the  incident prepared and then went to the police
\nstation and  therefore considering  the time that would have
\nbeen taken  in doing  all these\t things\t and  the  distance,
\nHarbhajan could\t not have reached the police station at 6.45
\nA.M. The evidence discloses that the police station was only
\ntwo furlongs away in the eastern direction from the place of
\nthe incident.  The hospital  to\t which\tBabu  was  taken  by
\nHarbhajan was  on the  way to  the police station. Though it
\nwas brought  out in  his  cross-examination  that  house  of
\nChandra Shekar\twas about  500 to  600 yards  away from\t the
\nhospital no  attempt was  made to elicit it which direction,
\nit was\tsituated. If  the hospital  and the house of Chandra
\nShekar were on the way to the police station it is difficult
\nto appreciate how more than 45 minutes would have been taken
\nin lodging the complaint. There was absolutely no reason for
\nthe investigating officer at the stage to put incorrect time
\nin the\tF.I.R. Another fact which appears from the F.I.R. is
\nthat it\t was registered\t as  Crime  No.\t 230  of  l981.\t The
\ncomplaint which\t Accused Gopal\tgave was registered as Crime
\nNo. 231\t of  ,981.  Thus  the  complaint  of  Harbhajan\t was
\nregistered earlier. The complaint Exh. D-5 was taken down by
\nthe investigating  officer after  going to the hospital. For
\nall these  reasons, it cannot be said that F.I.R., Exh. P-1,
\nwas not first in point of time. The courts below, therefore,
\nrightly treated\t Exh. P-1  as the  F.l.R. and  committed  no
\nerror  in   relying  upon   the\t same  for  the\t purpose  of
\ncorrobration.\n<\/p>\n
     After going  through the  evidence of  eye witnesses we
\nfind that  the courts  below have not committed any error in
\nappreciating their evidence which would justify interference
\nby this\t Court. We find that the names of P.W.2 Mathalli and
\nP.W.3 Bharosey were mentioned in the F.I.R. (Exh. P-1) which
\nwas recorded within a short time. As stated earlier Mathalli
\ndid not\t fully support\tthe prosecution\t and was  declared a
\nhostile witness. He however did depose about the presence of
\nappellants Heera  Singh and  Brijendra and  giving of  lathi
\nblows by  them to  deceased Babu  and also about presence of
\nP.W.3 Bharosey at the time of the incident. He was in no way
\nconnected with\tdeceased Babu  or P.W.1 Harbhajan nor did he
\nhave  any  enmity  with\t the  appellants.  P.W.3  Bharosey’s
\nstatement was  not recorded on the same day but was recorded
\non 14.8.91.  According to the investigating officer he could
\nnot  record   his  statement  earlier  because\the  was\t not
\navailable when he had tried to contact him. Relying upon the
\nstatement of P.W.3 Bharose that during all those days he was
\nin Bayana  and had  not gone  out, it  was submitted  by the
\nlearned counsel\t that the said explanation is false and that
\nBharosey was  falsely put  up as  an eye  witness. As  state
\nearlier name  of P.W.3\tBharosey was mentioned in the F.I.R.
\nand therefore,\tit is  not possible to accept the contention
\nthat he was a got up witness. Merely because the witness did
\nnot go\tout of\tBayana town  it cannot\tbe said\t that he was
\navailable all  the time\t and that  the investigating officer
\nwas not\t telling the  truth when  he stated  that he was not
\navailable when\the had\ttried to  contact him.\tIt was\talso
\nsubmitted  that\t  P.W.3\t Bharosey  was\tclosely\t related  to
\ndeceased Babu  and thus was a highly interested witness and,
\ntherefore, no  reliance should\thave been  placed  upon\t his
\nevidence without  independent corroboration.  In his  cross-
\nexamination he\tdenied that father of Harbhajan and Babu was
\nhis real  uncle. No attempt was made thereafter to establish
\nhis relationship  with deceased\t Babu or Harbhajan. The fact
\nthat the  houses of  deceased Babu,  P.W.1 Herbhajan,  P.W.3
\nBharosey were  situated in  the\t same  complex,\t by  itself,
\ncannot read  to an inference that he was a partisan witness.
\nEven Babu  and Harbhajan  were\tliving\tin  separate  houses
\nthough in  the same  complex. It  was not  even suggested to
\nP.W.3 Bharosey that he was staying jointly with Harbhajan or
\nBabu. Therefore,  not much  weight can\tbe attached  to\t the
\nstatement of  P.W.2 Mathalli that Bharosey was living in the
\nsame house  in which  Babu and\tHarbhajan resided.  What the
\nwitness really\tmeant was  that he  was living\tin the\tsame
\ncomplex.  Therefore,  Bharosey\tcannot\tbe  said  to  be  an
\ninterested  witness   as  no   other  connection   has\tbeen
\nestablished between him and deceased Babu and Harbhajan. The
\nCourts below were, therefore, right in placing reliance upon
\nthe evidence  of P.W.1\tHarbhajan as  it was corroborated by
\nthe F.I.R.  (Exh. P-1)\tand also  by the  evidence of  P.W.2
\nMathalli and  P.W.3 Bharosey  for believing  the presence of
\nthe appellants\tat the\tscene of  the offence  and the\trole
\nplayed by them.\n<\/p>\n
     The accused  including the appellants had pleaded right
\nof private  defence by\talleging that  on the  date  of\t the
\nincident at  about 6 A.M., near the house of one Amar Singh,
\nBabu, Harbhajan and his sons had attacked Gopal with lathis.
\nBabu had a gun with him. While Babu was loading his gun with
\na cartridge  Accused Gopal have a lathi blow to him with the
\nresult that  the gun  fell down.  Hearing  his\tshouts\tHari
\nSingh, Rattan,\tJagga and  others had come. Hari Singh tried
\nto save\t Gopal and  while doing\t so he himself received some
\nlathi blows from, Harbhajan and his sons. The High Court and
\ntrial court  rightly did not believe this offence version in
\nview of\t large number  of injuries on the person of Babu and
\nabsence of  any\t material  to  show  that  the\taccused\t had
\nreceived injuries during this incident.\n<\/p>\n
     It was  lastly contended by the learned counsel for the
\nappellants that\t in absence  of any  evidence as  to who had
\ncaused fatal  injuries to  deceased Babu  none\tof  the\t two
\nappellants could  have been  convicted substantively for the
\noffence punishable  under Section 302 I.P.C. The evidence of
\nthe eye-witnesses  is that  appellant No.1  Hari  Singh\t had
\ngiven lathi  blows on  the head\t of  deceased.\tThe  medical
\nevidence discloses  that skull of Babu was fractured and the
\ninternal injuries which he had received in his brain were by
\nthemselves sufficient  in the  ordinary course\tof nature to
\ncause his  death. Appellant  No.1  was,\t therefore,  rightly
\nconvicted for  the  offence  punishable\t under\tSection\t 302
\nI.P.C. Appellant No.2, according to the evidence of the eye-
\nwitnesses,  has\t given\tstick  blows  on  the  legs  of\t the
\ndeceased. Though  the eye-witnesses  have also\tstated\tthat
\nsome more  blows were also given by him to Babu after he had
\nfallen down  they have\tnot stated on which part of the body
\nthose blows  were given. Thus, there is no clear evidence on
\nrecord to  show that  Apppellant No.  2 had  caused a  fatal
\ninjury. Therefore,  conviction of  a  appellant\t No.2  under
\nSection 302  cannot be sustained. However, his participation
\nin the\tmurderous assault  on Babu along with Appellant No.1
\nis proved  beyond any  doubt and,  therefore,  he  would  be
\nguilty\tunder  Section\t302  read  with\t Section  34  I.P.C.
\nTherefore, his\tconviction will\t have  to  be  altered\tfrom
\nSection 302  to Section\t 302 read  with Section\t 34  I\tP.C.
\nHowever,  the\torder  of   sentence  imposed  upon  him  is
\nconfirmed.\n<\/p>\n
     In the  result the\t appeal is  dismissed subject to the
\nmodification stated above. The appellants were ordered to be
\nenlarged on  bail by  this Court on July 3, 1987. Therefore,
\nthey are  ordered  to  surrender  immediately  to  surrender
\nimmediately to serve out the remaining sentence.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Hari Singh & Anr vs State Of Rajasthan on 1 October, 1996 Author: Nanavati Bench: G.N. Ray, G.T. Nanavati 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-196196","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nHari Singh & Anr vs State Of Rajasthan on 1 October, 1996 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/hari-singh-anr-vs-state-of-rajasthan-on-1-october-1996\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Hari Singh & Anr vs State Of Rajasthan on 1 October, 1996 - 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