Singh & Anr Vs. State of Rajasthan
 INSC 1233 (1
Ray, G.T. Nanavati Nanavati, J.
is an appeal by special leave against the judgment and order passed by the High
Court of Rajasthan in Criminal Appeal Nos. 239 of 1983 and 388 of 1985. RCA.
No. 239 was filed by the four convicted accused whereas RCA. No. 388 was filed
by the State against the acquittal of the remaining accused and also against
the acquittal of Accused Ramphool under Section 302 PIC.
stated, the prosecution case was that there was enmity between the family of
the accused and the family of Babu Sing. Since 3 or 4 days before 29.7.81 the
accused were threatening to kill members of the family of Babu Sing and his
brother P.W.1. Harbhajan. On 29.7.81 at about 6.00 O'clock in the morning while Buddha, son of Harbhajan was returning
from hillside with milk all the 21 accused assaulted him and tried to kill him.
Hearing his cries Harbhajan and his brother Babu Singh ran to his rescue.
they reached near the house of one Amar Singh, the accused who were coming from
the opposite side encircled Babu and started beating him. Accused Hare Sing
gave 2-3 blows with his 'lathing' (stick) on the head of Babu.
Where Sing gave one or two lathing blows on his legs. Accused Brijendra also
gave 3 or 4 'lathi' blows on the person of Babu. So Babu fell down an
thereafter all the accused except Shrawan and Mohar Singh gave further
'lathing' blows to him. At that time Accused Shrew and Mohair Sing were saying
that Babu Sing should be killed and they would bear the expenses for defending
them. Meanwhile hearing shouts raised by Y, Y Mantilla and P.W.3 Bharosey came
there. Believing that Babu was dead the accused left that place and went to the
house of Babu. Accused Gopal, Benai Singh, Bhanwar and Dharam Singh entered the
house and took away the gun and belt of cartridges belonging to Babu.
his wife protested Accused Gopal and Dharam Singh gave 'lathi' blows and
Accused Benai Singh and Bhanwar gave fist blows to her. Harbhajan took Babu to Bayana Hospital. By that time his son Buddha was also removed to that
then went to the house of one Chandra Shekar, got a complaint regarding the
incident prepared and went with it to the police station. He reached there at 6.45 A.M. and gave the complaint. On its basis the F.I.R. (Exh.
P-1) was prepared by P.W.15 S.H.O. Kailash Bhagwati. The police officer then
went tc the hospital and recorded the complaint of Buddha (Exh. D-5) with
respect to the assault on him.
completing the investigation the police chargesheeted all the 21 accused. They
were thereafter tried in the Court of Additional Sessions Judge, Bharatpur for
the offences punishable under Sections 147, 148, 307 and 302 I.P.C. Those
accused who had entered the house of Babu and removed his gun and belt of
cartridges were also charged for the offences punishable under Sections 454 and
Shrawan and Mohar Singh who had not taken any part in beating Babu Singh were
charged for the offences punishable under Sections 147, 307 read with Section
149 and Section 302 read with Section 149 I.P.C.
order to prove the assault on Babu the prosecution relied mainly upon the
evidence of P.W.5 Buddha, his dying declaration and P.W.9 Jai Singh. Jai Singh
did not support the prosecution and was declared hostile. The learned
Additional Sessions Judge found the evidence of P.W.5 Buddha suffering from
some major contraditions and infirmities and, therefore, believed his evidence
only with respect to Accused Hari Singh, Heera Singh and Ramphool. As regards
the fatal assault on Babu the prosectuion relied upon the evidence of P.W.1 Harbhajan,
P.W.2 Mathalli, P.W.3 Bharosey and P.W.4 Bishni. In view of the admission made
by Bishni in her evidence that she had not seen the killing of her husband the
learned Additional Judge held that she was not an eye witness. The learned
Judge found the evidence of remaining three eye-witnesses believable as regards
Accused Hari Singh, Heera Singh and Brijendra but in view of contraditions and
inconsistencies in their evidence as regards the remaining 17 accused he did
not think it safe to accept it and, therefore, gave benefit of doubt to them.
As 24 injuries were caused to Buddha out of which 3 were grievous the learned
trial judge convicted Accused Ramphool, Hari Singh and Heera Singh under
Section 307 I.P.C. He also convicted Accused Hari Singh, Heera Singh and Brijendra
under Section 302 I.P.C. for causing death of Babu. Thus, Accused Hari Singh
and Heera Singh were convicted for the offences punishable under Sections 302
and 307 I.P.C., accussed Brijendra under Section 302 I.P.C. and Ramphool under
Section 302 I.P.C. These convicted accused were acquitted of all the other
four convicted accused filed Criminal Appeal No.239 of 1983 challenging their
conviction. The State filed an acquittal appeal against the 17 accused who were
completely acquitted and also against the acquittal of Accused Ramphool under
Section 302 I.P.C. Leave to appeal was granted only against some of them but it
is not necessary now to refer to that aspect as the acquittal appeal was
dismissed by the High Court and that order has become final. The High Court
after reappreciating the evidence confirmed the conviction of Hari Singh and Brijendra
under Section 302 I.P.C. for causing death of Babu as it found that the
evidence against them was quite consistent and sufficient. The High Court
acquitted Heera Singh as not found that his name was not mentioned in the
F.I.R. and he was falsely implicated as one of the persons who had given lathi
blows to the deceased.
respect to the assault on Buddha the High Court held that his evidence suffered
from material improvements and, therefore, it was not at all safe to rely upon
his evidence for convicting any accused. The High Court, therefore, acquitted
all the three accused who were convicted by the trial court under Section 307
I.P.C. The High Court also disbelieved the evidence with respect to the third
incident, namely, accused going to the house of Babu and taking away his gun
and belt of cartridges after causing some injuries to his wife Bishni.
learned counsel appearing for the two appellants, whose conviction under
Section 302 has been confirmed by the High Court, submitted that the High Court
failed to appreciate that the F.I.R. (Exh. P-1) could not have been recorded at
6.45 A.M. in view of certain admissions made by P.W.1 Harbhajan and that in all
probability the complaint against the accused was recorded after a complaint
was given by Accused Gopal against Babu, Harbhajan, Buddha and others at the Bayana
Police Station with respect to the same incident. He also submitted that the
courts below failed to appreciate that Exh. D-5 was the first information in
point of time and the investigation should be deemed to have started on the
basis of the said information and, therefore, Exh. P-1 could not have been
treated as F.I.R. It was also contended that P.W.3 Bharosey was not an
independent witness and, therefore, it was not proper to convict the appellants
relying upon the evidence of two interested witnesses only.
also contended that the courts below committed an error in not believing the defence
of the appellants that injuries were caused by them in exercise of their right
of private defence, particularly when it was proved that Accused Hari Singh had
received two injuries on his person during that incident and one of them was a
fracture. Lastly, it was contended that the evidence does not justify their
conviction under Section 302 I.P.C. and, therefore, their conviction under that
Section is improper and illegal.
going through the evidence we find that there is no substance in any of the
contentions raised on behalf of the appellants. the first incident, that is,
the assault on Babu took place at about 6 A.M. according to the prosecution evidence. Even in the cross-complaint
filed by Accused Gopal time of the incident was mentioned as 6 A.M. though his version about the incident was different. It was
submitted that P.W.1 Harbhajan in his evidence has stated that after the
accused left he took his brother Babu to the hospital, then went to the house
of Chandra Shekar, got a complaint regarding the incident prepared and then
went to the police station and therefore considering the time that would have
been taken in doing all these things and the distance, Harbhajan could not have
reached the police station at 6.45 A.M. The evidence discloses that the police
station was only two furlongs away in the eastern direction from the place of
the incident. The hospital to which Babu was taken by Harbhajan was on the way
to the police station. Though it was brought out in his cross-examination that
house of Chandra Shekar was about 500 to 600 yards away from the hospital no
attempt was made to elicit it which direction, it was situated. If the hospital
and the house of Chandra Shekar were on the way to the police station it is
difficult to appreciate how more than 45 minutes would have been taken in
lodging the complaint. There was absolutely no reason for the investigating
officer at the stage to put incorrect time in the F.I.R. Another fact which
appears from the F.I.R. is that it was registered as Crime No. 230 of l981. The
complaint which Accused Gopal gave was registered as Crime No. 231 of ,981.
Thus the complaint of Harbhajan was registered earlier. The complaint Exh. D-5
was taken down by the investigating officer after going to the hospital. For
all these reasons, it cannot be said that F.I.R., Exh. P-1, was not first in point
of time. The courts below, therefore, rightly treated Exh. P-1 as the F.l.R.
and committed no error in relying upon the same for the purpose of corrobration.
going through the evidence of eye witnesses we find that the courts below have
not committed any error in appreciating their evidence which would justify
interference by this Court. We find that the names of P.W.2 Mathalli and P.W.3 Bharosey
were mentioned in the F.I.R. (Exh. P-1) which was recorded within a short time.
As stated earlier Mathalli did not fully support the prosecution and was
declared a hostile witness. He however did depose about the presence of
appellants Heera Singh and Brijendra and giving of lathi blows by them to
deceased Babu and also about presence of P.W.3 Bharosey at the time of the
incident. He was in no way connected with deceased Babu or P.W.1 Harbhajan nor
did he have any enmity with the appellants. P.W.3 Bharosey's statement was not
recorded on the same day but was recorded on 14.8.91. According to the
investigating officer he could not record his statement earlier because he was
not available when he had tried to contact him. Relying upon the statement of
P.W.3 Bharose that during all those days he was in Bayana and had not gone out,
it was submitted by the learned counsel that the said explanation is false and
that Bharosey was falsely put up as an eye witness. As state earlier name of
P.W.3 Bharosey was mentioned in the F.I.R. and therefore, it is not possible to
accept the contention that he was a got up witness. Merely because the witness
did not go out of Bayana town it cannot be said that he was available all the
time and that the investigating officer was not telling the truth when he
stated that he was not available when he had tried to contact him. It was also
submitted that P.W.3 Bharosey was closely related to deceased Babu and thus was
a highly interested witness and, therefore, no reliance should have been placed
upon his evidence without independent corroboration. In his cross- examination
he denied that father of Harbhajan and Babu was his real uncle. No attempt was
made thereafter to establish his relationship with deceased Babu or Harbhajan. The
fact that the houses of deceased Babu, P.W.1 Herbhajan, P.W.3 Bharosey were
situated in the same complex, by itself, cannot read to an inference that he
was a partisan witness.
and Harbhajan were living in separate houses though in the same complex. It was
not even suggested to P.W.3 Bharosey that he was staying jointly with Harbhajan
or Babu. Therefore, not much weight can be attached to the statement of P.W.2 Mathalli
that Bharosey was living in the same house in which Babu and Harbhajan resided.
What the witness really meant was that he was living in the same complex.
Therefore, Bharosey cannot be said to be an interested witness as no other
connection has been established between him and deceased Babu and Harbhajan.
The Courts below were, therefore, right in placing reliance upon the evidence
of P.W.1 Harbhajan as it was corroborated by the F.I.R. (Exh. P-1) and also by
the evidence of P.W.2 Mathalli and P.W.3 Bharosey for believing the presence of
the appellants at the scene of the offence and the role played by them.
accused including the appellants had pleaded right of private defence by alleging
that on the date of the incident at about 6 A.M., near the house of one Amar Singh, Babu, Harbhajan and his sons had
attacked Gopal with lathis.
had a gun with him. While Babu was loading his gun with a cartridge Accused Gopal
have a lathi blow to him with the result that the gun fell down. Hearing his
shouts Hari Singh, Rattan, Jagga and others had come. Hari Singh tried to save Gopal
and while doing so he himself received some lathi blows from, Harbhajan and his
sons. The High Court and trial court rightly did not believe this offence
version in view of large number of injuries on the person of Babu and absence
of any material to show that the accused had received injuries during this
lastly contended by the learned counsel for the appellants that in absence of
any evidence as to who had caused fatal injuries to deceased Babu none of the
two appellants could have been convicted substantively for the offence
punishable under Section 302 I.P.C. The evidence of the eye-witnesses is that
appellant No.1 Hari Singh had given lathi blows on the head of deceased. The
medical evidence discloses that skull of Babu was fractured and the internal
injuries which he had received in his brain were by themselves sufficient in
the ordinary course of nature to cause his death. Appellant No.1 was,
therefore, rightly convicted for the offence punishable under Section 302
I.P.C. Appellant No.2, according to the evidence of the eye- witnesses, has
given stick blows on the legs of the deceased. Though the eye-witnesses have
also stated that some more blows were also given by him to Babu after he had
fallen down they have not stated on which part of the body those blows were
given. Thus, there is no clear evidence on record to show that Apppellant No. 2
had caused a fatal injury. Therefore, conviction of a appellant No.2 under
Section 302 cannot be sustained. However, his participation in the murderous
assault on Babu along with Appellant No.1 is proved beyond any doubt and,
therefore, he would be guilty under Section 302 read with Section 34 I.P.C.
his conviction will have to be altered from Section 302 to Section 302 read
with Section 34 I P.C.
the order of sentence imposed upon him is confirmed.
result the appeal is dismissed subject to the modification stated above. The
appellants were ordered to be enlarged on bail by this Court on July 3, 1987. Therefore, they are ordered to
surrender immediately to surrender immediately to serve out the remaining