{"id":76422,"date":"2009-03-31T00:00:00","date_gmt":"2009-03-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bachan-singh-ors-vs-state-on-31-march-2009"},"modified":"2017-02-18T19:16:48","modified_gmt":"2017-02-18T13:46:48","slug":"bachan-singh-ors-vs-state-on-31-march-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bachan-singh-ors-vs-state-on-31-march-2009","title":{"rendered":"Bachan Singh & Ors vs State on 31 March, 2009"},"content":{"rendered":"
Rajasthan High Court – Jodhpur<\/div>\n
Bachan Singh & Ors vs State on 31 March, 2009<\/div>\n
                                                           1\n\n    IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN\n                      AT JODHPUR\n\n\n                      J U D G M E N T\n\n\n            1. D.B. CRIMINAL APPEAL No. 29 of 1983\n\n            BACHAN SINGH & ORS. V\/S STATE\n\n            2. D.B. CRIMINAL APPEAL No. 46 of 1983\n\n            AJMER SINGH & ANR. V\/S STATE\n\n\n\nDate of Judgment                    :       31st March, 2009\n\n\n                           PRESENT\n                  HON'BLE SHRI N.P.GUPTA,J.\n          HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J.\n\n\n\n\nMr. M.K.Garg & Mr. JR Choudhary, for the appellants.\nMr. AR Nikub, P.P.\n\n\nBY THE COURT: (Per Hon'ble Gupta, J.)<\/pre>\n
            These two appeals have been filed by<\/p>\n
different accused persons against the common judgment<\/p>\n
of the learned Additional Sessions Judge,<\/p>\n
Raisinghnagar dt. 14.1.1983, convicting them as<\/p>\n
under:-\n<\/p>\n
Bachan Singh s\/o Gurdayal Singh:- u\/s.148, 307, 302,<\/p>\n
323\/149, 324\/149 and 326\/249 IPC.\n<\/p>\n
Gurcharan Singh s\/o Gurdayal Singh:- u\/s. 148,<\/p>\n
307\/149, 302\/149, 326 in the alternative 326\/149, 324<\/p>\n
in the alternative 324\/149 and 323\/149 IPC.
\n                                                          2<\/span><\/p>\n
Ajmer Singh s\/o Ramrakha :- u\/s. 148, 307\/149,<\/p>\n
302\/149, 326\/149, 324\/149 and 323\/149 IPC.<\/p>\n
Makhan Singh s\/o Gurbachan Singh:- u\/s. 148, 307\/149,<\/p>\n
302\/149, 326\/149, 324\/149 and 323\/149 IPC.<\/p>\n
Gurdayal Singh s\/o Jawala Singh:- u\/s. 148, 307\/149,<\/p>\n
302\/149, 326\/149, 324\/149 and 323\/149 IPC.<\/p>\n
And therefore, both these appeals are being decided by<\/p>\n
this common order.\n<\/p>\n<\/p>\n
         Appeal No. 29 has been filed by four accused<\/p>\n
persons, being Bachan Singh, Gurcharan Singh, both<\/p>\n
sons of Gurdayal Singh, Gurdayal Singh s\/o Jawala<\/p>\n
Singh, and Makhan Singh s\/o Gurbachan Singh, while<\/p>\n
Appeal No. 46 has been filed by two accused persons,<\/p>\n
being Ajmer Singh and Harnam Singh. During pendency of<\/p>\n
the present appeals accused Gurdayal Singh in Appeal<\/p>\n
No. 29, and accused Harnam Singh in Appeal No. 46,<\/p>\n
have died, which fact is not in dispute, consequently<\/p>\n
the appeals of both these accused abate. Thus, the<\/p>\n
appeals survive on behalf of only four accused<\/p>\n
persons, being Bachan Singh, Gurcharan Singh, Makhan<\/p>\n
Singh and Ajmer Singh.\n<\/p>\n<\/p>\n
         Brief facts of the case are, that on 1.4.78<\/p>\n
at about 10 past 6 in the morning Dharam Singh, P.W.1<\/p>\n
lodged an oral report, to the effect, that he lives in<\/p>\n
Chak 40 NP, separately from his parents, while his<\/p>\n
parents and brother of the father lives in the Abadi<\/p>\n
of Chak No. 41 NP. Similarly Pyaru Singh and his wife
\n                                                          3<\/span><\/p>\n
are also living for the last 3 months in 41 NP. With<\/p>\n
this, it was alleged, that some 7 days before the<\/p>\n
report, there was a dispute between Pyaru Singh and<\/p>\n
his wife Vidhya, and therefore, Vidhya left the<\/p>\n
matrimonial home, and contacted Nata with the younger<\/p>\n
brother of the informant, being Harnam Singh, and<\/p>\n
started living there with him. Then two days before<\/p>\n
the report, Panchayat was got convened by Pyaru Singh,<\/p>\n
wherein it was resolved, that Vidhya would be handed<\/p>\n
over back to Pyaru Singh. This was accepted by the<\/p>\n
father of the informant, and she was to be returned on<\/p>\n
the morning of the day of the report. Since Vidhya had<\/p>\n
gone to her parental house, in the last evening she<\/p>\n
was brought back to his father’s house, and the father<\/p>\n
told the informant, that she is to be handed over to<\/p>\n
Pyaru, then the informant went to his house. However,<\/p>\n
at about 12.30 in the night, one tractor of Madho<\/p>\n
Singh came to house of Kehar Singh in Chak 40 NP,<\/p>\n
wherein some persons being resident of 41 NP were<\/p>\n
there, which aroused suspicion, then after some time<\/p>\n
he went to his father’s house, and saw that near their<\/p>\n
house, Gurdayal Singh, Harnam Singh, Gurbachan Singh,<\/p>\n
Ajmer Singh, Bachan Singh, Makhan Singh, Gurcharan<\/p>\n
Singh @ Charni, Pyaru and younger son of Bachan Singh,<\/p>\n
along with 2-3 more persons being Bawari r\/o Chak 41<\/p>\n
NP were collected. Bachan Singh was armed with double<\/p>\n
barrel muzzle loading gun, while others were armed<\/p>\n
with Lathis and Gandasi. On looking at them he told<\/p>\n
his father, Bahnoi Gurdayal Singh and Santa Singh etc.<\/p>\n
about this fact. Then, along with informant’s father
\n                                                          4<\/span><\/p>\n
they came out. Informant’s father told Bachan Singh<\/p>\n
etc. as to how they had come at this odd time.<\/p>\n
Thereupon accused persons encircled them, and blocked<\/p>\n
way of the house. Then, in order to save themselves,<\/p>\n
they ran towards 40 NP, and after travelling about 2<\/p>\n
killas the accused persons chased them, and at that<\/p>\n
time Bachan Singh fired at the informant, which<\/p>\n
fortunately did not hit. Then, his father and Bahnoi<\/p>\n
Gurdayal Singh were caught from behind by the accused,<\/p>\n
Gurdayal Singh and Harnam Singh etc., and injuries<\/p>\n
were inflicted on him with Gandasi and Lathi. In the<\/p>\n
meantime Bachan Singh also arrived, and he fired the<\/p>\n
second shot on the informant’s father Arjun Singh,<\/p>\n
which hit on the chest, who died on the spot. However,<\/p>\n
he could be able to snatch the gun from Bachan Singh,<\/p>\n
and at that time injuries were also inflicted on his<\/p>\n
right hand, and head, with Gandasi and Lathi, then<\/p>\n
looking many persons coming from towards 40 NP,<\/p>\n
accused persons took to heals. Then, it started<\/p>\n
raining, and on its stopping, he has come to lodge the<\/p>\n
report. The dead body is lying in the field. On this<\/p>\n
report a case under Section 302, 307, 326, 324, 323,<\/p>\n
447, 147, 148, 149 IPC and 27 Indian Arms Act was<\/p>\n
registered, and investigation was commenced. After<\/p>\n
completing the investigation, challan was filed by the<\/p>\n
police against nine accused persons, being Ajmer Singh<\/p>\n
s\/o Ramrakha, Bachan Singh s\/o Gurdayal Singh,<\/p>\n
Gurcharan Singh s\/o Gurdayal Singh, Makhan Singh s\/o<\/p>\n
Gurbachan Singh, Pyaru @ Pyara Singh, Harnam Singh s\/o<\/p>\n
Sunder Singh, Bachan Singh @ Gurbachan Singh, Gurdayal
\n                                                          5<\/span><\/p>\n
Singh s\/o Jawala Singh, and Baldev Singh s\/o Gurbachan<\/p>\n
Singh.\n<\/p>\n<\/p>\n
          Learned trial court framed charges against<\/p>\n
the accused persons for different offences, inasmuch<\/p>\n
as accused Bachan Singh was charged for the offence<\/p>\n
under Section 148, 307, 302, 324 and in the<\/p>\n
alternative 324\/149, 323 and in the alternative<\/p>\n
323\/149, 326 and in the alternative 326\/149 IPC and 27<\/p>\n
of the Indian Arms Act, while all other accused<\/p>\n
persons were charged for the offences under Section<\/p>\n
148, 307\/149, 302\/149, 324 and in the alternative<\/p>\n
324\/149, 323 and in the alternative 323\/149, 326 and<\/p>\n
in the alternative 326\/149 IPC. All the accused<\/p>\n
persons denied the charges.\n<\/p>\n<\/p>\n
          During trial the prosecution examined 14<\/p>\n
witnesses, and tendered in evidence some 46 documents,<\/p>\n
while the defence did not lead any evidence in<\/p>\n
defence. In the statements under Section 313 Cr.P.C.,<\/p>\n
the stand taken by some of the accused persons,<\/p>\n
(specially the accused persons whose appeal survives,<\/p>\n
except Makhhan Singh) was, that Bachan Singh along<\/p>\n
with four more persons were sent by the Panchayat to<\/p>\n
call Arjun Singh (deceased), whereupon five persons<\/p>\n
went to the house of Arjun Singh, and conveyed that<\/p>\n
Panchayat is calling them, at that time at the house<\/p>\n
of Arjun Singh, apart from Gurdayal Singh four more<\/p>\n
Gundas were there, while Dharam Singh was not there,<\/p>\n
and those persons told them, that “\u092a\u091a \u092f\u0924 \u0915 \u091c \u0928 \u0915 \u092a\u0924
\n                                                          6<\/span><\/p>\n
\u0939\u092e \u0926\u0924 \u0939”, and started giving beating. Accused Bachan<\/p>\n
Singh also stated, that he and his companions started<\/p>\n
rushing towards village, still he was beaten, and his<\/p>\n
companions also tried to save, and in that process<\/p>\n
Dhakka Mukki was done, and he does not know as to how<\/p>\n
Arjun Singh died. Bachan Singh did not give name of<\/p>\n
his other companions. However, the accused Gurcharan<\/p>\n
Singh disclosed, that Panchayat had sent him, Bachan<\/p>\n
Singh, Gurdayal Singh, Harnam Singh, and Ajmer Singh,<\/p>\n
to call Arjun Singh. Regarding the other four accused<\/p>\n
persons, stand was taken that they have been falsely<\/p>\n
implicated, because they are taking side of Pyaru<\/p>\n
Singh.\n<\/p>\n<\/p>\n
         Learned trial court after completing the<\/p>\n
trial acquitted the accused Pyaru @ Pyara Singh,<\/p>\n
Gurbachan Singh s\/o Krapa Ram and Baldev Singh s\/o<\/p>\n
Gurbachan Singh, while convicted the other six accused<\/p>\n
persons as above. It may be observed here, that<\/p>\n
accused persons, victim, and the prosecution witnesses<\/p>\n
also some times bears the same name, and therefore, at<\/p>\n
times, they would be referred to as the accused, or as<\/p>\n
the witness.\n<\/p>\n<\/p>\n
         Arguing the appeal, learned counsel for the<\/p>\n
appellants submitted, that the prosecution is sought<\/p>\n
to be rested on the evidence of the family members, or<\/p>\n
near relations, apart from the fact, that three<\/p>\n
witnesses P.W. 5, P.W. 6 and P.W.7, being Gurbachan<\/p>\n
injured, Santa Singh, and Bhagwan Singh have not
\n                                                          7<\/span><\/p>\n
supported the prosecution case. Then it was submitted,<\/p>\n
that five of the accused persons, being Gurdayal<\/p>\n
Singh, Ajmer Singh, Harnam Singh, Gurcharan Singh, and<\/p>\n
Gurbachan Singh are also injured persons, as is proved<\/p>\n
from their respective injury reports being Ex.P-40 to<\/p>\n
Ex.P-44, which have been duly proved by the doctor<\/p>\n
P.W. 13 Dr. Surendra Mohan Sharma, and a look at them<\/p>\n
shows, that according to Ex.P-40 Gurdayal Singh had 5<\/p>\n
injuries, according to Ex.P-41 Ajmer Singh had 2<\/p>\n
injuries, according to Ex. P-42 Harnam Singh had 6<\/p>\n
injuries, according to Ex.P-43 Gurcharan Singh had 3<\/p>\n
injuries and according to Ex.P-44 Gurbachan Singh had<\/p>\n
20 injuries, and out of that, there is a fracture of<\/p>\n
7th rib, as is clear from X-Ray Report Ex.P-46. While<\/p>\n
none of the prosecution witnesses have explained any<\/p>\n
of these injuries, which are huge in number, which<\/p>\n
clearly shows, that the prosecution has come up with<\/p>\n
false case, and the real story is, as deposed by the<\/p>\n
accused persons, in their statement under Section 313<\/p>\n
Cr.P.C., and as deposed by P.W. 2 Gurdayal Singh, who<\/p>\n
had been declared hostile, and all this clearly shows,<\/p>\n
that the alleged act of the accused persons was<\/p>\n
clearly covered by their right of private defence.<\/p>\n
Then, elaborating the argument it was also submitted,<\/p>\n
that the star witness P.W. 1 Dharam Singh, who claims<\/p>\n
to be eye witness, is the son of the deceased Arjun<\/p>\n
Singh, various infirmities in his statement have been<\/p>\n
highlighted, by submitting, that even according to<\/p>\n
this witness P.W.1, he had already gone to his house<\/p>\n
at Chak 40 NP in the night, and thereafter there was
\n                                                          8<\/span><\/p>\n
no occasion for him to go to Chak 41 NP, and he has<\/p>\n
cooked up the occasion about tractor of Madho Singh<\/p>\n
having come to house of Kehar Singh, wherein many<\/p>\n
persons were travelling, but then, neither Madho Singh<\/p>\n
nor Kehar Singh was examined by the prosecution, even<\/p>\n
though they are also shown as Motbirs of various<\/p>\n
memos. Then, even if it is assumed that he had gone,<\/p>\n
the story about his seeing the accused persons,<\/p>\n
identifying them, and conveying it to his father Arjun<\/p>\n
Singh, is thoroughly discrepant, and at various places<\/p>\n
varying versions have been given, viz. whether the<\/p>\n
accused persons were sitting ambush the heaps of grass<\/p>\n
(kumpa) which are scattered on the spot, or they were<\/p>\n
outside the house, whether he identified them in the<\/p>\n
torch light, and then informed the father, or only on<\/p>\n
hearing that some people are camping in the field at<\/p>\n
different places in suspicious circumstances, informed<\/p>\n
this fact to his father, then he along with his<\/p>\n
father, and other persons came out of the house, and<\/p>\n
called the camping persons their object of being<\/p>\n
there, and identified them in the torch light etc.<\/p>\n
Then, it was also submitted that the place where the<\/p>\n
dead body is lying is at a distant place from the<\/p>\n
house, and two empties have been recovered from<\/p>\n
different killas. Then, in the photograph a cloth<\/p>\n
Potli is also visible, which also shows, that it is<\/p>\n
the defence version, which is clearly correct, that in<\/p>\n
the dead hour of the night the accused persons were<\/p>\n
going to take away Vidhya at village 1-MD, and there<\/p>\n
the trouble arose. Then, according to P.W.1 the gun
\n                                                          9<\/span><\/p>\n
was fired from the close range, while according to<\/p>\n
Doctor there is dispersion in the entry wounds. Then,<\/p>\n
regarding gun also there are discrepancies, inasmuch<\/p>\n
as according to the witness P.W.1 he had handed over<\/p>\n
the gun in the police station before lodging the<\/p>\n
report, while according to I.O. P.W.9 Prakash Chand,<\/p>\n
he had recovered the gun from the witness P.W.1 Dharam<\/p>\n
Singh. It was also submitted, that he clearly denies<\/p>\n
to have seen any injuries on any of the accused<\/p>\n
persons, which belies the fact of his being eye<\/p>\n
witness. It was also submitted that the witnesses are<\/p>\n
two brothers only, the other being Harnam Singh, with<\/p>\n
whom Vidhya had contacted Nata, and who is physically<\/p>\n
disabled. Thus, no reliance could be placed on this<\/p>\n
witness, whereas the learned trial court had placed<\/p>\n
implicit reliance on this witness P.W.1 Dharam Singh,<\/p>\n
for finding six accused persons guilty, which is<\/p>\n
clearly bad. It was also submitted, that occurrence is<\/p>\n
said to have occurred at 1 in the night, and it is<\/p>\n
stated that the whole night it rained, and report is<\/p>\n
said to have been lodged at 10 past 6 in the morning,<\/p>\n
but it reached the Magistrate at 15 past 5 in the<\/p>\n
evening, which shows that F.I.R. was subsequently<\/p>\n
manipulated. It was also submitted, that in the F.I.R.<\/p>\n
there is no mention about there being any torch with<\/p>\n
him. It was also submitted, that according to the<\/p>\n
F.I.R. the accused persons had camped near the house,<\/p>\n
while in the court statement he has deposed, that they<\/p>\n
were camping behind the grass heaps. Admittedly no<\/p>\n
occurrence had taken place at the house. It was also
\n                                                         10<\/span><\/p>\n
submitted that despite it having rained all over the<\/p>\n
night, the police had purported to collect the soil<\/p>\n
smeared with blood. It was also submitted that<\/p>\n
according to this witness, accused Harnam Singh and<\/p>\n
Gurcharan Singh   @ Charni had inflicted injuries on<\/p>\n
him with Gandasi and Lathi, while according to Injury<\/p>\n
Report Ex.P-39, he had sustained only two abrasions,<\/p>\n
which are blunt weapon injuries. It was also submitted<\/p>\n
that village 41 NP is having an Abadi of about 100<\/p>\n
houses, but nobody came even to intervene, and no one<\/p>\n
from the Abadi has been produced. Then, commenting<\/p>\n
upon the conduct of the witness, it was submitted,<\/p>\n
that after incident the witnesses have gone to the<\/p>\n
house, and slept, while the deceased was allowed to be<\/p>\n
kept lying at the place of incident itself. Regarding<\/p>\n
non explanation of injuries on the accused persons,<\/p>\n
learned counsel relied upon the judgments of the<\/p>\n
Hon’ble Supreme Court, in Shiv Karan Vs. State of<\/p>\n
Rajasthan reported in 1998 SCC(Cri.)-712, Lakhwinder<\/p>\n
Singh Vs. State of Punjab reported in 2003 SCC(Cri)-<\/p>\n
1426, and Balwan Singh Vs. State of Haryana reported<\/p>\n
in (2006) 1 SCC (Cri) 108.\n<\/p>\n<\/p>\n
         Learned Public Prosecutor, on the other hand,<\/p>\n
supported the impugned judgment.\n<\/p>\n<\/p>\n
         We have considered the submissions made by<\/p>\n
the learned counsel for the appellant, and have gone<\/p>\n
through the entire record very closely.
\n                                                         11<\/span><\/p>\n
         At the outset it may be observed, that<\/p>\n
learned counsel for the appellant is right, when he<\/p>\n
contends, that the statement of star witness P.W.1<\/p>\n
Dharam Singh contains infirmities, and does contain<\/p>\n
improvements, and is the son of the deceased, but<\/p>\n
then, this require us to scan the statement of all the<\/p>\n
material on record very closely, to find out as to<\/p>\n
whether his evidence is to be discarded altogether, or<\/p>\n
has rightly been relied upon by the learned trial<\/p>\n
court.\n<\/p>\n<\/p>\n
         We find, that out of the prosecution<\/p>\n
witnesses examined P.W.1 Dharam Singh, P.W.2 Gurdayal<\/p>\n
Singh, P.W.3 Harnam Singh, P.W.4 Vidhya, P.W.5<\/p>\n
Gurbachan Singh, P.W.6 Santa Singh, P.W.7 Bhagwan<\/p>\n
Singh, and P.W.11 Rajkaur have been produced as eye<\/p>\n
witnesses\/ material witnesses to substantiate the<\/p>\n
prosecution case, while P.W. 13 and 14, Dr. Surendra<\/p>\n
Mohan Sharma, and Dr. Ramlal Goyal are the doctors who<\/p>\n
had examined the injuries of the injureds and the<\/p>\n
deceased. Out of these eight important witnesses, as<\/p>\n
noticed above, P.W.2 Gurdayal Singh, P.W. 5 Gurbachan<\/p>\n
Singh, P.W. 6 Santa Singh, and P.W. 7 Bhagwan Singh<\/p>\n
have not supported the prosecution, and therefore,<\/p>\n
they have been declared hostile.\n<\/p>\n<\/p>\n
         At this place we may also observe, that it is<\/p>\n
of course established legal position, that the accused<\/p>\n
persons are not bound to give out their version of the<\/p>\n
incident, much less correctly. Their statement under
\n                                                         12<\/span><\/p>\n
Section 313 are to be recorded for the purpose of<\/p>\n
enabling them to explain the evidence and<\/p>\n
circumstances appearing against them in the<\/p>\n
prosecution case, but they are not bound to explain it<\/p>\n
either, and even if they do not explain, any adverse<\/p>\n
inference cannot be drawn on that account against<\/p>\n
them, and the prosecution, of course, is bound to<\/p>\n
project the case correctly, and prove it beyond all<\/p>\n
reasonable doubt, in order to bring home guilt against<\/p>\n
the accused. But then, it is also established legal<\/p>\n
position, that if the accused persons offer<\/p>\n
explanation in their statement under Section 313<\/p>\n
Cr.P.C., that can be used in deciding the case, and<\/p>\n
can be used against the accused persons as well.<\/p>\n
         Though it is the duty of the prosecution to<\/p>\n
lead correct and truthful evidence, but then, if on<\/p>\n
some aspects the witness chose to lie, or make<\/p>\n
improvements, their entire evidence cannot be thrown<\/p>\n
out altogether, as in criminal case “falsus in uno<\/p>\n
falsus in omnibus” is not the principle applicable in<\/p>\n
India.\n<\/p>\n<\/p>\n
         Keeping in mind the above principles, we have<\/p>\n
to appreciate the evidence of the prosecution, in<\/p>\n
conjunction with the defence, with the explanation<\/p>\n
given out by the accused persons, of the story<\/p>\n
projected by them in the evidence, and find out, as to<\/p>\n
whether from the reliable part of the evidence of the<\/p>\n
prosecution, any offence is brought home to all, or
\n                                                         13<\/span><\/p>\n
any of the appellants, whose appeal survives.<\/p>\n
         As noticed above, it was argued that the<\/p>\n
prosecution has sought to rely, and rest its case on<\/p>\n
the evidence of family members, and near relations<\/p>\n
only. In our view, it is established legal position<\/p>\n
that the testimony of witness cannot be thrown away<\/p>\n
simply on the ground of his being a family member, or<\/p>\n
near relation of the victim. The evidence of such<\/p>\n
witness may be required to be examined, more<\/p>\n
critically, which we shall do.\n<\/p>\n<\/p>\n
         So far as three witnesses P.W.5, P.W. 6 and<\/p>\n
P.W.7, having not supported the prosecution case is<\/p>\n
concerned, we shall examine the case on the basis of<\/p>\n
other evidence available on record.\n<\/p>\n<\/p>\n
         Then, coming to the effect of injuries found<\/p>\n
on the person of the accused, and the prosecution<\/p>\n
having cooked up false case, and the real story being<\/p>\n
the one, as deposed by the accused persons in their<\/p>\n
statement under Section 313, and as deposed by P.W.2<\/p>\n
Gurdayal, we shall consider this aspect later, after<\/p>\n
appreciating the evidence of the two witnesses Dharam<\/p>\n
Singh and Gurdayal, in conjunction with the statement<\/p>\n
of the accused persons recorded under Section 313.<\/p>\n
Obviously, at that time we shall also examine the<\/p>\n
aspect, as to whether the act of the accused is<\/p>\n
protected by their alleged right of private defence.
\n                                                         14<\/span><\/p>\n
         Since the learned trial court has relied upon<\/p>\n
the evidence of Dharam Singh P.W.1, in convicting the<\/p>\n
six appellants, we better stand advised to first of<\/p>\n
all critically examine the evidence of this star<\/p>\n
witness Dharam Singh.\n<\/p>\n<\/p>\n
          Dharam Singh in his evidence has deposed,<\/p>\n
that he lives in 40 NP, while his parents and brother<\/p>\n
live in 41 NP. His Bahnoi Gurdayal Singh (P.W.2) lives<\/p>\n
with his father (Arjun Singh). Then he stated that<\/p>\n
some six months back Vidhya, the wife of Pyaru had<\/p>\n
contacted Nata with his brother Harnam. Three days<\/p>\n
thereafter Pyaru called a Panchayat, which decided,<\/p>\n
that Vidhya should be handed over back to Pyaru, to<\/p>\n
which his father agreed. Then, on the next day of<\/p>\n
decision of Panchayat, Gurdayal Singh had gone to<\/p>\n
fetch Vidhya from her parental house. Then, Gurdayal<\/p>\n
Singh, Bachan Singh, Mst. Bhago and Santa Singh had<\/p>\n
brought Vidhya from her parental house to his father’s<\/p>\n
house, who reached at 6 in the evening, at which time<\/p>\n
he was there at the father’s house. Then, he went to<\/p>\n
his own house. Then, he stated that at about 12 in the<\/p>\n
night, tractor of Madho Singh came from 41 NP to 40 NP<\/p>\n
at the house of Kehar Singh, wherein 5-6 persons were<\/p>\n
travelling, being Kehar Singh, Hajara Singh, Chanan<\/p>\n
Singh, Madho Singh, and one more person, who were<\/p>\n
telling, that at the house of Arjun Singh some Gundas<\/p>\n
have come, thereupon he went to 41 NP to see his<\/p>\n
father, he threw torch light and saw that 8-9 people<\/p>\n
were camping near Kumpas, and identified them as
\n                                                         15<\/span><\/p>\n
accused Bachan Singh s\/o Gurdayal Singh, Charni s\/o<\/p>\n
Gurdayal Singh, Makhan Singh s\/o Arjun Singh, Baldev<\/p>\n
Singh s\/o Bachan Singh, Harnam Singh s\/o Sunder Singh,<\/p>\n
Ajmer Singh, and some more persons were there, to whom<\/p>\n
he had seen in the light of torch, he does not<\/p>\n
remember. Then, he awakened his father, who asked all<\/p>\n
the persons as to who they are, whereupon those<\/p>\n
persons encircled them. Then, he, his father, Gurdayal<\/p>\n
Singh and Bachan Singh s\/o Gurdayal Singh ran away, at<\/p>\n
that time accused Bachan Singh fired at him, which did<\/p>\n
not hit, then all the accused persons came near them,<\/p>\n
and then accused Bachan Singh fired shot at his<\/p>\n
father, which hit on the chest, and the other accused<\/p>\n
persons inflicted injuries with Lathis and Gandasies<\/p>\n
on his father, and on him. Injuries were caused to<\/p>\n
Gurdayal Singh also. He stated, that he was having a<\/p>\n
Lathi, which was also wielded by him. Then, when<\/p>\n
Bachan Singh was re-loading the gun, he snatched it,<\/p>\n
which gun was double barrel muzzle loading gun, in the<\/p>\n
meanwhile tractor of Madho Singh came, and seeing that<\/p>\n
all the accused persons ran away, his father died on<\/p>\n
the spot. Then, he has stated that Bachan Singh had<\/p>\n
gun, Harnam Singh and Charni were armed with Gandasa,<\/p>\n
Ajmer Singh was armed with Sela, and others were armed<\/p>\n
with Lathis. Then, at 6 in the next morning he lodged<\/p>\n
report at Police Station Raisinghnagar, and proved<\/p>\n
Ex.P-1. Then, police people came with him and prepared<\/p>\n
Inquest Report, and other Memos Ex.P-4 to P-9, which<\/p>\n
he has proved to be bearing his signatures. Empties<\/p>\n
were recovered from the spot. He had produced the gun
\n                                                         16<\/span><\/p>\n
to the police, and soil was also collected from the<\/p>\n
spot. This is the entire statement, in examination in<\/p>\n
chief.\n<\/p>\n<\/p>\n
         Then, in cross examination he has stated,<\/p>\n
that there had been no enmity earlier with Gurdayal<\/p>\n
Singh and his sons, though they were not on visiting<\/p>\n
terms, but he was knowing them, though he did not know<\/p>\n
entire family. He stated to be living in 40 NP for the<\/p>\n
last 20-25 years. However, for the last 3 years he is<\/p>\n
living in 41 NP, which is inhabited by around 40<\/p>\n
houses, while Chak 41 NP has about 100 houses. He has<\/p>\n
denied to be knowing accused Harnam Singh, being<\/p>\n
Behnoi of Gurbachan Singh. According to him Pyaru and<\/p>\n
Vidhya were residing in 41 NP for the last 3 months<\/p>\n
before the incident, though they had no land or<\/p>\n
property in 41 NP, and were living in the house of<\/p>\n
Pratikaur. He had purchased a cow from Pyaru. Then, he<\/p>\n
stated that Vidhya had gone with Gurdayal Singh to<\/p>\n
Raisinghnagar for getting recorded her statement.<\/p>\n
Gurdayal Singh is said to be Bahnoi of the witness,<\/p>\n
and to be a witness in the case. Vidhya was deposed to<\/p>\n
be resident of 16-O, and the way to that village is<\/p>\n
through Raisinghnagar. Kehar Singh, Madho Singh, Bhag<\/p>\n
Singh, Chanan Singh and Hajara Singh are not on<\/p>\n
inimical terms with him. They were Panchas in<\/p>\n
Panchayat, and witness was also present in the<\/p>\n
Panchayat, where his father had stated, that Vidhya is<\/p>\n
living voluntarily, and he has denied suggestion about<\/p>\n
having denied to return Vidhya, rather they asked for
\n                                                          17<\/span><\/p>\n
two days time to return her. He has stated that<\/p>\n
Gurdayal had gone on foot to fetch Vidhya, and while<\/p>\n
returning, they came in a jeep, along with many more<\/p>\n
persons. He stated that in the F.I.R. he did not<\/p>\n
mention about Gurdayal having been sent to fetch<\/p>\n
Vidhya. Witness Gurbachan Singh was said to be Bahnoi<\/p>\n
of witness’ Bahnoi. Then he stated, that after Vidhya<\/p>\n
having come to his house he had gone to 40 NP after<\/p>\n
about an hour, and his father did not arrange for meat<\/p>\n
and alcohol. He stated, that distance between 40 NP<\/p>\n
and 41 NP is 4 Murabbas. 40 NP is situated towards the<\/p>\n
South, and the way is through his father’s Dhani. He<\/p>\n
stated, that while going to his Dhani, he did not see<\/p>\n
the accused. Then, some of his cross examination was<\/p>\n
recorded in question answer form, wherein he stated,<\/p>\n
that the accused persons were sitting at a distance of<\/p>\n
20 paces from his house, behind Kumpas.   The northern<\/p>\n
portion of the Dhani is open, having no wall. However,<\/p>\n
in the eastern side there is 30 ft. long wall, having<\/p>\n
3 ft. height. It being summer all family members were<\/p>\n
sleeping in the open Angan. He had admitted, that in<\/p>\n
between Angan and Kumpa there is engine room, which is<\/p>\n
12ft. wide and 20ft. long. Police had come twice,<\/p>\n
first time at 8 in the morning, and second time it<\/p>\n
came at 2 in the afternoon. He stated, that when the<\/p>\n
police came to their Dhani, he did not show the cots,<\/p>\n
which were being used for sleeping by the family<\/p>\n
members, though cots were lying there, which were 4 to<\/p>\n
5 in number. He has deposed that his father’s house is<\/p>\n
adjacent to the Abadi of 41 NP. Kumpas were said to be
\n                                                         18<\/span><\/p>\n
3, 2 being of height of 6ft. and 10ft wide, while one<\/p>\n
was said to be of 4 ft. height and 8ft. wide, and<\/p>\n
interse these Kumps there was gap of about one ft. He<\/p>\n
has admitted, that his brother Harnam Singh is<\/p>\n
physically disabled, and that they are only two<\/p>\n
brothers. He had also admitted, that Harnam being<\/p>\n
disabled, he was not married. He stated that Madho<\/p>\n
Singh’s tractor had stopped at the house of Kehar<\/p>\n
Singh, which is at a distance of 1\u00bd Bighas from the<\/p>\n
witness’ house, towards the south. In between there is<\/p>\n
only one Chowk, and there is no other house. He stated<\/p>\n
that in 40 NP he has no enmity with anybody. Then, he<\/p>\n
has stated that while giving statement to police he<\/p>\n
did not give out, that in the tractor Kehar Singh,<\/p>\n
Madho Singh, Hajara Singh and Charan Singh were there.<\/p>\n
He has also admitted, that while giving F.I.R. he did<\/p>\n
not give out, that these persons, travelling in the<\/p>\n
tractor, had told him, that Gundas are camping at the<\/p>\n
house of Arjun Singh. He stated that on the day<\/p>\n
following Panchayat, Gurdayal had gone to fetch<\/p>\n
Vidhya, and had returned on the next day. He has also<\/p>\n
stated, that on his reaching the eastern and southern<\/p>\n
corner of the house, he had lighted the torch, the<\/p>\n
accused persons were camping behind the Kumpas,<\/p>\n
towards the North. He stated, that then he went to the<\/p>\n
house, and told about location of the accused persons,<\/p>\n
though he did not tell about the weapons with which<\/p>\n
they were armed, as he did not see the weapons. He<\/p>\n
entertained a suspicion, that the accused persons will<\/p>\n
cause some damage in the Dhani of his father. There is
\n                                                         19<\/span><\/p>\n
only one way from 41 NP to his house, he did not go to<\/p>\n
the other inhabitants of 41 NP to inform, nor he<\/p>\n
informed any of his relatives, who live in 41 NP. He<\/p>\n
has also stated, that 40 NP and 41 NP, both the<\/p>\n
villages are inhabited by Bawaries. Then he stated,<\/p>\n
that while giving report he had told police, that he<\/p>\n
had seen the accused persons in the light of torch,<\/p>\n
and does not know as to why it is not mentioned in the<\/p>\n
report. He also stated that he disclosed the names of<\/p>\n
the accused persons to the police, but he did not<\/p>\n
state that he did not know the name of Baldev Singh,<\/p>\n
therefore, his name was not mentioned in the report.<\/p>\n
In the report he does not remember as to whether he<\/p>\n
has mentioned the name of accused Bachan s\/o Gurdayal<\/p>\n
Singh, Makhan Singh s\/o Bachan Singh, Harnam Singh s\/o<\/p>\n
Santu Singh, and he stated, that he does not remember<\/p>\n
as to why the names of the accused was not mentioned<\/p>\n
in the first report. Then he stated that when they<\/p>\n
ran, Arjun Singh was ahead of all. Then, Gurdayal<\/p>\n
Singh was there, then other persons were there. He was<\/p>\n
4-5 paces behind his father. Some accused followed<\/p>\n
them, while some were lying ambush Bansathia bushes in<\/p>\n
Killa No. 14, and therefrom first shot was fired at<\/p>\n
him, and by coming out from Bansathia bushes one shot<\/p>\n
was fired at his father, where his father had fallen<\/p>\n
down. He stated, that in the report he had mentioned<\/p>\n
that 2-3 more Bawaris of 41 NP were there. Bachan<\/p>\n
Singh had fired at him from a distance of about 20<\/p>\n
paces, which did not hit him. He had also stated, that<\/p>\n
at the time when fire was made, his father was ahead
\n                                                         20<\/span><\/p>\n
of him at a distance of 4-5 paces. Bansathia was at a<\/p>\n
distance of 10 paces, at the place, where his father<\/p>\n
was shot. At that time he was in Killa No. 14.<\/p>\n
Bansathia belonged to them, which were lying in two<\/p>\n
Killas, and was of the height of 4ft., and was lying<\/p>\n
on the boundary of Killa no. 14, and in between Killa<\/p>\n
no. 15 and 16, and they were lying in the area of 15<\/p>\n
ft x 20 ft. He does not remember as to whether his<\/p>\n
Bahnoi Gurdayal was there at the time when his father<\/p>\n
was shot. Then, he reached near the dead body of his<\/p>\n
father. His father’s face was downward. Then, he<\/p>\n
stated that till arrival of police, the dead body was<\/p>\n
not disturbed. Then, he stated that he does not<\/p>\n
remember as to whether there was any Potli. Then, he<\/p>\n
was shown photo Ex.D-2 and D-3, wherein Potli is<\/p>\n
visible at point X. Then, he stated, that this Potli<\/p>\n
contained blood smeared soil. When he was confronted<\/p>\n
with portion A to B of his police statement Ex.D-4, he<\/p>\n
deposed to have not given out that portion. Then, he<\/p>\n
was confronted with portion C to D in the police<\/p>\n
statement Ex.D-4, about his having seen the weapons in<\/p>\n
the hands of accused persons, and he stated that, he<\/p>\n
deposed that portion to police. In this portion it is<\/p>\n
mentioned, that he saw in the torch light, that<\/p>\n
accused Bachan Singh was armed with double barrel<\/p>\n
muzzle loading gun, and Charni and Harnam Singh were<\/p>\n
armed with Gandasi, and Ajmer Singh was armed with<\/p>\n
Sela. Then, he stated that Gurdayal Singh received<\/p>\n
injuries at the boundary of Killa no. 15 and 16, while<\/p>\n
his father was shot in Killa no. 16. It was there
\n                                                         21<\/span><\/p>\n
itself that at a distance of 7-8 paces therefrom<\/p>\n
Gurdayal received injuries. Gurdayal Singh also bled.<\/p>\n
Injuries were caused on his father near Bansathia,<\/p>\n
before being fired. These injuries were also caused on<\/p>\n
the boundary of Killa No. 16, the witness received<\/p>\n
injuries on the boundary of Killa no. 14. He<\/p>\n
maintained, that he received injuries on the hand by<\/p>\n
Gandasi, which injuries were shown to doctor. Injuries<\/p>\n
were shown to police also. Then he was confronted with<\/p>\n
police statement Ex.D-4 portion E to F, about injuries<\/p>\n
received by him, to which he stated to be not<\/p>\n
remembering this part of the statement. He has<\/p>\n
admitted, that he did not make any attempt to save his<\/p>\n
father, and did not go near the dead body of the<\/p>\n
father, as he snatched the gun from Bachan Singh, and<\/p>\n
straight way ran away. He stated to have reached near<\/p>\n
Bachan Singh, immediately after his having fired, at<\/p>\n
that time Bachan Singh was re-loading the gun. He<\/p>\n
stated, that it is not mentioned, that Bachan Singh<\/p>\n
was re-loading the gun. He stated, that he was also<\/p>\n
having a Lathi, which fact is not mentioned in the<\/p>\n
police report. When Bachan Singh started to run away,<\/p>\n
he snatched his gun. He stated that he did not give<\/p>\n
gun in the police station. He has also stated, that<\/p>\n
gun snatched by him from Bachan Singh was handed over<\/p>\n
by him to the police at the house itself, before<\/p>\n
lodging the report. Then, he stated, that on next day,<\/p>\n
at about 2 in the noon, the gun was handed over to the<\/p>\n
police. The police had come at 8 in the morning. He<\/p>\n
does not remember as to whether the accused persons
\n                                                         22<\/span><\/p>\n
were there at the police station, or not. Then, in the<\/p>\n
evening at 4 he went to the police station, at that<\/p>\n
time the accused persons were not there at the police<\/p>\n
station. He stated, that Bachan Singh accused is also<\/p>\n
known as Gurbachan Singh. Then, he has stated to be<\/p>\n
not aware, as to whether the accused persons Gurdayal<\/p>\n
Singh, Gurcharan Singh, Gurbachan Singh, Makhan Singh,<\/p>\n
Ajmer Singh, Harnam Singh were having injuries, rather<\/p>\n
he did not see those injuries. His father received<\/p>\n
only one gun shot injury at the hands of Bachan Singh<\/p>\n
from point blank range. His father did not hold the<\/p>\n
barrel of the gun. He has also stated that it started<\/p>\n
raining after death of his father. They did not bring<\/p>\n
his father to the home. It rained all over the night.<\/p>\n
He went to Mandi in the morning only. He had collected<\/p>\n
some 10-20 persons, to whom he narrated about the<\/p>\n
incident, which include Maka Singh, Panch Kehar Singh,<\/p>\n
Bhagwan Singh etc. He had narrated the incident to<\/p>\n
them at about 2 in the night itself. Then, on court<\/p>\n
question he stated, that Bachan Singh fired at his<\/p>\n
father while standing in Killa no. 16. Before that<\/p>\n
Bachan Singh was sitting behind Bansathia. He has also<\/p>\n
stated, that after seeing behind near Kumpa, he had<\/p>\n
seen Bachna only when he fired. This is the whole<\/p>\n
evidence of Dharam Singh.\n<\/p>\n<\/p>\n
         Then, we come to the evidence of P.W. 2<\/p>\n
Gurdayal Singh. He is son in law of the deceased Arjun<\/p>\n
Singh, and was living with Arjun Singh, along with his<\/p>\n
family. He has deposed that some 7 months ago when he
\n                                                         23<\/span><\/p>\n
was in the Dhani at about 5-6 P.M., there was a<\/p>\n
dispute between Pyaru and Vidhya, and Pyaru told<\/p>\n
Vihdya to live with Arjun, then Vidhya went away with<\/p>\n
the son of Arjun, being Harnam. Then Panchayat was<\/p>\n
convened, by the villagers of village 41 NP, and in<\/p>\n
the Panchayat it was decided that Vidhya should be<\/p>\n
handed over to Pyaru. Then, at 6 P.M. Dharam Singh<\/p>\n
brought four persons in a jeep, and left them at<\/p>\n
Dhani, and went to 40 NP, and all the four persons and<\/p>\n
Arjun Singh told, that they would take away Vidhya in<\/p>\n
the night. Then, at 12-1 in the night, all the four<\/p>\n
persons, along with Arjun Singh, Vidhya and the<\/p>\n
witness, left the home for going to 1 MD, they started<\/p>\n
towards Gharsana, and after travelling about 2 Killas,<\/p>\n
five persons met them, being accused Gurdayal Singh,<\/p>\n
Bachan Singh, Gurcharan Singh, Harnam Singh, and Ajmer<\/p>\n
Singh. They asked as to where are they taking Vidhya,<\/p>\n
thereupon Arjun told to hand over Vidhya to them.<\/p>\n
Then, the four companions of the witness started<\/p>\n
chasing Gurdayal Singh etc., the witness and the<\/p>\n
persons were armed with Gandasi and Lathi, while<\/p>\n
Gurdayal Singh etc. were also armed with Gandasi and<\/p>\n
Lathi, and one of the companion of the witness was<\/p>\n
armed with gun, who fired, which hit Arjun Singh.<\/p>\n
Then, all the four persons ran away. Then, Panchayat<\/p>\n
people came in a tractor, and they returned back to<\/p>\n
Dhani. He has also deposed, that accused persons did<\/p>\n
not give any beating to anybody. At this stage the<\/p>\n
witness was declared hostile, and was cross-examined<\/p>\n
by the Public Prosecutor, wherein he deposed, that in
\n                                                         24<\/span><\/p>\n
the Panchayat his father-in-law had accepted to<\/p>\n
handover Vidhya on the next day. He has denied the<\/p>\n
suggestion, about Vidhya having gone to her parental<\/p>\n
house, or he and his wife to have brought Vidhya from<\/p>\n
her parental house. He was then confronted with<\/p>\n
portion A to B of police statement Ex.P-10, which he<\/p>\n
denied to have stated. He also denied the suggestion<\/p>\n
to be deposing falsely, because he wants to have land<\/p>\n
from sons of Arjun Singh, being Dharam Singh and<\/p>\n
Harnam Singh. He has of course denied, that his<\/p>\n
injuries were examined medically. Then, he was cross<\/p>\n
examined on behalf of the accused persons, wherein he<\/p>\n
stated, that when they started with Vidhya, Vidhya was<\/p>\n
having a bundle of clothes, which was being carried by<\/p>\n
his father-in-law. He has stated, that in the incident<\/p>\n
they also chased accused persons, and inflicted<\/p>\n
injuries on them. They also inflicted injuries on<\/p>\n
Gurbachan Singh by chasing him, and caused injuries to<\/p>\n
all the five accused persons. There were many persons<\/p>\n
from villages 40NP and 41 NP. Then, he stated that he<\/p>\n
does not know about his own injuries, as it was night.<\/p>\n
He has then stated that the persons coming on the<\/p>\n
tractor included Kehar Singh, Fagga Ram and others, to<\/p>\n
whom also he narrated the incident. He has also stated<\/p>\n
that Pyaru is grand son of accused Gurdayal Singh,<\/p>\n
while Harnam is Behnoi of accused Gurbachan Singh, and<\/p>\n
Bachan Singh s\/o Gurdayal Singh is his brother’s son.<\/p>\n
         Thus, this witness purports to depose, of<\/p>\n
course, as hostile witness, that Vidhya did not go to
\n                                                          25<\/span><\/p>\n
her parental house, and in the night, she was being<\/p>\n
taken to village 1-MD, and after travelling about 2<\/p>\n
Killas, five accused persons met, and thereupon a<\/p>\n
scuffle took place, wherein both sides received<\/p>\n
injuries. He has of course, also stated that one of<\/p>\n
his companions was having gun, which was fired, which<\/p>\n
hit Arjun Singh. The five accused persons according to<\/p>\n
this witness are Bachan Singh, Gurdayal Singh,<\/p>\n
Gurcharan Singh, Harnam Singh and Ajmer Singh.<\/p>\n
           At this place we may refer to the statement<\/p>\n
of the accused Gurcharan Singh, recorded under Section<\/p>\n
313 Cr.P.C., and a look at that shows, that therein he<\/p>\n
had stated, that Panchayat had sent this accused along<\/p>\n
with Bachan Singh, Gurdayal, Ajmer Singh and Harnam<\/p>\n
Singh, to call Arjun Singh. Thus, the prosecution and<\/p>\n
defence are ad-idem, at least to the effect, that five<\/p>\n
accused persons, being Gurbachan Singh @ Bachan Singh,<\/p>\n
Gurdayal Singh, Gurcharan Singh, Harnam Singh and<\/p>\n
Ajmer Singh were there in the incident. They claimed<\/p>\n
to have received injuries also, as shown in Ex.P-40 to<\/p>\n
Ex.P-44.\n<\/p>\n<\/p>\n
           We need not discuss the other evidence of the<\/p>\n
material witnesses produced by the prosecution, as we<\/p>\n
are at one with their appreciation, as made by the<\/p>\n
learned trial court, to the effect, that they had not<\/p>\n
actually seen the accused persons causing specific<\/p>\n
injuries to any of the victims, as they were inside<\/p>\n
the house. However, we may add, that their evidence is
\n                                                         26<\/span><\/p>\n
material, so far as it relates to the sequence of<\/p>\n
things, prior to incident, and immediately thereafter.<\/p>\n
We may invoke the theory of res-gastae in this regard.<\/p>\n
         In our view it can very safely be said that<\/p>\n
it is not in dispute, that Arjun Singh died in the<\/p>\n
incident, and died of the gun shot. Gun obviously<\/p>\n
belonged to the accused Bachan Singh, and was his<\/p>\n
licensed gun, which license has been recovered<\/p>\n
pursuant to the information, and at the instance of<\/p>\n
the accused Bachan singh being Ex.P-34 and Ex.P-35. Of<\/p>\n
course, in the statement under Section 313 Bachan<\/p>\n
Singh had stated, that the S.H.O. had taken the<\/p>\n
license from his house, but then, the fact of gun<\/p>\n
being his licensed gun, is not in dispute, and it has<\/p>\n
not come in the evidence of any of the witness,<\/p>\n
whether by way of cross examination, or otherwise, or<\/p>\n
in the statement under Section 313, that at the time<\/p>\n
of incident, apart from Bachan Singh’s gun, there was<\/p>\n
any other gun.\n<\/p>\n<\/p>\n
          In this background, if the statement of<\/p>\n
P.W.1 Dharam Singh is critically examined, as noticed<\/p>\n
above, that in some respects he has belied, in some<\/p>\n
respects he has made improvements, and in some<\/p>\n
respects he has made exaggeration also, but then, even<\/p>\n
if that part of the statement is excluded, and even if<\/p>\n
the material part of the statement of Gurdayal Singh,<\/p>\n
the hostile witness is believed, in favour of the<\/p>\n
defence, it does show, that in the night six persons,
\n                                                          27<\/span><\/p>\n
including Gurdayal Singh and Arjun Singh were taking<\/p>\n
away Vidhya to village 1-MD, and after travelling 2<\/p>\n
Killas, the five accused persons being   Bachan Singh,<\/p>\n
Gurdayal Singh, Gurcharan Singh, Harnam Singh and<\/p>\n
Ajmer Singh met. According to this witness P.W.2<\/p>\n
Gurdayal Singh, both the parties were armed with<\/p>\n
Gandasa and Lathi, while as appears from the evidence<\/p>\n
of P.W.1, that Bachan Singh was armed with gun, though<\/p>\n
this witness P.W.2 has attributed gun to one of his<\/p>\n
companion, which cannot be believed, also for the<\/p>\n
simple reason, that it has not been so suggested to<\/p>\n
any other witness, nor has it been so stated in any of<\/p>\n
their statement under Section 313, and at that place<\/p>\n
the incident occurred, resulting into death of Arjun<\/p>\n
Singh.\n<\/p>\n<\/p>\n
          Obviously, we are not inclined to believe<\/p>\n
the story of Dharam Singh, about Vidhya being at her<\/p>\n
parental house, she having been brought in the evening<\/p>\n
to Arjun singh’s house, then Dharam Singh coming to<\/p>\n
his village 40NP, then learning from occupants of<\/p>\n
tractor of Madho Singh, being Kehar Singh etc. about 9<\/p>\n
persons being camping around the house of Arjun Singh,<\/p>\n
then his having gone there all alone, and spotted the<\/p>\n
accused persons in the torch light, and then to have<\/p>\n
narrated their presence to his father, and then he<\/p>\n
along with his father etc. having gone out, having<\/p>\n
been encircled, and incident having occurred.<\/p>\n
          Rather it is clear, that the deceased and
\n                                                         28<\/span><\/p>\n
his companions, including Dharam Singh, were taking<\/p>\n
Vidhya to village 1-MD, and after travelling two<\/p>\n
killas, the five accused persons, being Bachan Singh,<\/p>\n
Gurdayal Singh, Gurcharan Singh, Harnam Singh and<\/p>\n
Ajmer Singh intercepted them, obviously because,<\/p>\n
according to both the sides the Panchayat had directed<\/p>\n
that Vidhya be handed over to Pyaru, and either in<\/p>\n
order to take away Vidhya from Arjun etc., or in order<\/p>\n
to prevent them from taking her to village 1-MD,<\/p>\n
incident was occurred. We are inclined to believe,<\/p>\n
that instead of nine, and even instead of six, only<\/p>\n
five persons, being Bachan Singh, Gurdayal Singh,<\/p>\n
Gurcharan Singh, Harnam Singh and Ajmer Singh, were<\/p>\n
there, who had received injuries, as are clear from<\/p>\n
Ex.P-40 to Ex.P-44. So far Dharam Singh’s presence at<\/p>\n
the time of incident is concerned, that cannot be<\/p>\n
doubted, also for the simple reason, that he is also<\/p>\n
one of the injured witnesses, and those injuries are<\/p>\n
not alleged to have been received, otherwise at the<\/p>\n
time of incident.\n<\/p>\n<\/p>\n
         Thus, in our view, from the evidence of<\/p>\n
Dharam Singh, Gurdayal Singh and other witnesses,<\/p>\n
believed by the learned trial court, it is clearly<\/p>\n
established, that the incident occurred at Killa no.<\/p>\n
14 and 16, and was caused by five accused persons<\/p>\n
only, being Bachan Singh, Gurdayal Singh, Gurcharan<\/p>\n
Singh, Harnam Singh and Ajmer Singh, out of which<\/p>\n
Bachan Singh was armed with gun, whose fire hit Arjun<\/p>\n
Singh. Obviously, all these five persons were armed
\n                                                         29<\/span><\/p>\n
with deadly weapons like gun, Gandasi etc., and their<\/p>\n
object clearly was to commit an unlawful act, or even<\/p>\n
purportedly committing lawful act did constitute<\/p>\n
unlawful assembly, as the act was intended to be done<\/p>\n
by unlawful means, and since at such dead hour of<\/p>\n
night they were armed with deadly weapons, including a<\/p>\n
double barrel muzzle loading gun, both barrels whereof<\/p>\n
were also loaded, it does clearly show, that their<\/p>\n
common object was not to say prayers, but to secure<\/p>\n
Vidhya, or to prevent Vidhya from being taken to<\/p>\n
village 1-MD, and for that purpose, even to cause<\/p>\n
death by the firearm, of any-one who comes in between,<\/p>\n
and in that process both the barrels were fired, one<\/p>\n
of which did not hit Dharam Singh, and the other hit<\/p>\n
Arjun Singh. Two empties have been recovered from the<\/p>\n
spot, and before gun could be re-loaded, it was<\/p>\n
snatched from Bachan Singh, by Dharam Singh, and after<\/p>\n
committing the incident, accused persons went away,<\/p>\n
looking other persons having come there.<\/p>\n
         There is, of course, some discrepancy in the<\/p>\n
evidence of Dharam Singh on the aspect as to when did<\/p>\n
he handover the gun to the police authorities, but<\/p>\n
then that is not of much consequence, because the gun<\/p>\n
is a licensed gun of Bachan Singh, which license has<\/p>\n
been recovered vide Ex.P-34 and Ex. P-35, and which<\/p>\n
license is undisputedly his one, and the factum of<\/p>\n
snatching of gun by Dharam Singh has not been<\/p>\n
successfully assailed in cross examination either.
\n                                                         30<\/span><\/p>\n
          We may then examine the aspect of non-\n<\/p>\n
explanation of injuries on the accused persons. We<\/p>\n
have gone through the three judgments cited by the<\/p>\n
learned counsel for the appellant, and are of the<\/p>\n
view, that so far as the principles propounded in<\/p>\n
these judgments are concerned, that does not admit of<\/p>\n
any dispute, but then the fact does remain, that the<\/p>\n
effect of non explanation of injuries, depends upon<\/p>\n
facts and circumstances of each case, including nature<\/p>\n
of injuries. Here P.W.2 has clearly deposed, that both<\/p>\n
the parties were armed with Lathis and Gandasis, and<\/p>\n
both parties caused injuries to each other. Likewise<\/p>\n
Dharam Singh has also deposed, that he was armed with<\/p>\n
Lathi, and did wield Lathi. This, coupled with the<\/p>\n
fact, that of course injuries on the accused persons<\/p>\n
are good in number, but then, in Ex.P-40 all injuries<\/p>\n
are abrasions of 1 cm. X 1 cm., or 1.5 cm. X \u00bd cm.,<\/p>\n
and so on. Then, in Ex.P-41 also there are two<\/p>\n
abrasions. Then, in Ex.P-42 again there are abrasions,<\/p>\n
and linear abrasions. Then, Ex.P-43 there are<\/p>\n
abrasions. Of course, in Ex.P-44 there is one fracture<\/p>\n
of 7th rib, and there are two wounds of blunt weapon,<\/p>\n
otherwise they are also all abrasions. It would<\/p>\n
suffice to say, that in the sequence of things, as is<\/p>\n
deposed by P.W. 2, where five persons on either side<\/p>\n
are armed with deadly weapons, like Gandasi and Lathi,<\/p>\n
and shower indiscriminate blows, these injuries<\/p>\n
clearly stand explained.\n<\/p>\n
                                                         31<\/span><\/p>\n
          Now, the only aspect, that remains to be<\/p>\n
considered is, as to whether the alleged act of the<\/p>\n
accused persons is covered by the right of private<\/p>\n
defence, or not. In our view, a look at the cross<\/p>\n
examination of Dharam Singh shows, that nothing was<\/p>\n
suggested to him about the manner of happening of the<\/p>\n
accident, or its beginning, so as to even give<\/p>\n
indication about there being any right of private<\/p>\n
defence available to the accused persons much less to<\/p>\n
cause death of Arjun Singh. Be that as it may. This is<\/p>\n
only one aspect of the matter. Then, if we were to<\/p>\n
spell out the right of private defence, even de hors<\/p>\n
the evidence of P.W.1, then the only possible material<\/p>\n
in that regard is, the one stated by the five accused<\/p>\n
in their statement under Section 313 Cr.P.C., and at<\/p>\n
best, what has been deposed by P.W. 2 Gurdayal Singh,<\/p>\n
the hostile witness. According to one part of the<\/p>\n
story, being the one stated by the accused persons,<\/p>\n
the five accused persons had gone to the house of<\/p>\n
Arjun Singh to call him in the Panchayat, and Arjun<\/p>\n
Singh told them that he would show the effect of<\/p>\n
Panchayat, and then the accused persons were beaten.<\/p>\n
Significantly they deliberately omitted to disclose as<\/p>\n
to how Arjun Singh died, by specifically stating that<\/p>\n
they did not know as to how Arjun Singh died. They<\/p>\n
also do not disclose as to how they had gone to the<\/p>\n
house of Arjun Singh at such odd time, duly armed with<\/p>\n
deadly weapons like double barrel muzzle loading gun,<\/p>\n
Gandasa, Sela etc. Then what is still more significant<\/p>\n
to note is, that it has not come from any corner, or
\n                                                         32<\/span><\/p>\n
material on record, that any incident of beating or<\/p>\n
killing occurred, at, or just outside the house of<\/p>\n
Arjun Singh. Obviously accused persons had no occasion<\/p>\n
to go armed at the house of Arjun Singh at such odd<\/p>\n
time, as it is not their case, that they were<\/p>\n
apprehending any untoward incident at the house of<\/p>\n
Arjun. Thus, the version given by the accused persons<\/p>\n
in their statement under Section 313 does not provide<\/p>\n
any right of private defence to them.\n<\/p>\n<\/p>\n
         Then, considering the evidence of P.W.2<\/p>\n
Gurdayal Singh also, taking the case as deposed by<\/p>\n
him, at the highest, the occurrence occurred because<\/p>\n
Arjun Singh etc. were taking Vidhya to village 1-MD.<\/p>\n
It is not the case, that Vidhya was with the accused<\/p>\n
persons, which was forcibly being taken away by Arjun<\/p>\n
Singh etc., and was being taken away to village Chak<\/p>\n
1-MD, so as to provide, or make available, any right<\/p>\n
of private defence on person of Vidhya. Admittedly<\/p>\n
Vidhya had already contacted Nata with Harnam Singh,<\/p>\n
and according to prosecution, Panchayat had directed<\/p>\n
Vidhya to be handed over to Pyaru. If that were so,<\/p>\n
and if Arjun Singh was committing any act in<\/p>\n
disobedience of the order of Panchayat, in taking away<\/p>\n
Vidhya to village Chak 1-MD, it did not confer any<\/p>\n
right of private defence on accused persons, to commit<\/p>\n
these offences, either in order to forcibly acquire<\/p>\n
possession of Vidhya, or for the purpose of preventing<\/p>\n
prosecution persons from taking away Vidhya to village<\/p>\n
1-MD.\n<\/p>\n
                                                         33<\/span><\/p>\n
         Then, as the things appear on the face of it,<\/p>\n
it is nowhere and nobody’s case, that at the place<\/p>\n
where the incident occurred, being Killa No. 14 and<\/p>\n
16, the prosecution party had opened the assault, nor<\/p>\n
is it even suggested to any of them. Thus, simply<\/p>\n
because the accused persons are also shown to have<\/p>\n
received numerous injuries, even on that basis also,<\/p>\n
it cannot be said that the accused persons had any<\/p>\n
right of private defence to commit the offence as<\/p>\n
charged against them.\n<\/p>\n<\/p>\n
         Thus, considering the case from any stand<\/p>\n
point, we do not find any error on the part of the<\/p>\n
learned trial court, so far as it convicted the five<\/p>\n
accused persons Bachan Singh, Gurdayal Singh,<\/p>\n
Gurcharan Singh, Harnam Singh and Ajmer Singh, for the<\/p>\n
various offence, as convicted. In our view, the<\/p>\n
involvement of Makhan Singh is not established beyond<\/p>\n
reasonable doubt. Out of five accused persons since<\/p>\n
the accused Harnam Singh and Gurdayal Singh have<\/p>\n
already died, their appeal is already abated.<\/p>\n
         Resultantly, Appeal No. 29 is partly allowed.<\/p>\n
The accused Makhan Singh s\/o Gurbachan Singh is<\/p>\n
acquitted of all the charges. He is on bail, he need<\/p>\n
not surrender, and his bail bonds stand cancelled.<\/p>\n
However, the appeal No. 29 so far as it relates to<\/p>\n
accused Bachan Singh and Gurcharan Singh, so also
\n                                                       34<\/span><\/p>\n
Appeal No. 46, so far as it relates to appellant Ajmer<\/p>\n
Singh, is devoid of any merit, and the same is<\/p>\n
dismissed. The learned trial court is directed to take<\/p>\n
necessary steps to have these accused persons<\/p>\n
arrested, and commit them to custody for undergoing<\/p>\n
remaining part of the sentence.\n<\/p>\n
( KISHAN SWAROOP CHAUDHARI ),J.       ( N P GUPTA ),J.<\/p>\n
\/Sushil\/\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Rajasthan High Court – Jodhpur Bachan Singh & Ors vs State on 31 March, 2009 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T 1. D.B. CRIMINAL APPEAL No. 29 of 1983 BACHAN SINGH & ORS. V\/S STATE 2. D.B. CRIMINAL APPEAL No. 46 of […]<\/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":[8,19],"tags":[],"class_list":["post-76422","post","type-post","status-publish","format-standard","hentry","category-high-court","category-rajasthan-high-court-jodhpur"],"yoast_head":"\nBachan Singh & Ors vs State on 31 March, 2009 - 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\/bachan-singh-ors-vs-state-on-31-march-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bachan Singh & Ors vs State on 31 March, 2009 - 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