Guman Singh vs The State Of Rajasthan

GUMAN SINGH ….. APPELLANT(S)

VERSUS

STATE OF RAJASTHAN ….. RESPONDENT(S)

JUDGMENT

SANJIV KHANNA, J.

The appellant, Guman Singh impugns judgment dated

10.03.2017 passed by the Division Bench of the High Court of

Judicature for Rajasthan at Jaipur, which confirms his conviction

under Section 302 of the Indian Penal Code (“IPC”, for short) for

murder of Shiv Charan and under Section 307 read with Section

34 IPC for attempt to murder Babu Singh. Appellant stands

sentenced under Section 302 IPC to life imprisonment and fine of

Rs. 10,000/- and in default of payment of fine to serve additional

rigorous imprisonment for one year and for an offence under

Section 307 IPC to rigorous imprisonment of 10 years with fine of

Rs. 1,000/- and in default of payment, an additional rigorous

imprisonment of one year.

Criminal Appeal No. 1475 of 2017 Page 1

2. The conviction arises out of FIR No. 464/2009 registered on

30.08.2009 at 8.20 p.m. in Police Station Hindaun City, District-

Karauli, Rajasthan and the consequent charge-sheet filed against

the present appellant, i.e. Guman Singh, and Jagdish Singh,

Satvir Singh and Shyam Singh. Jagdish Singh was acquitted by

the Additional Sessions Judge, Hindaun City, Karauli, Rajasthan

vide judgment dated 07.06.2013 and Shyam Singh and Satvir

Singh have been acquitted in the impugned judgment of the High

Court.

3. The primary issue/question raised before us relates to veracity

and truthfulness of the testimonies of Tara Singh (PW-1) and

Varun Singh (PW-4), son and nephew of the deceased Shiv

Charan. Tara Singh (PW-1) and Varun Singh (PW-4) have

deposed that they along with Shivendra Singh were on a

motorcycle on their way from Hindaun to Village Banki. The

deceased Shiv Charan and the injured Babu Singh were on

another motorcycle a few steps ahead of them. Near Chauve ka

bandh, another motorcycle with the present appellant Guman

Singh and Satvir Singh s/o Ramoli and Shyam Singh s/o Ummed

Singh, residents of Village Banki, appeared from behind and came

parallel to the motorcycle driven by the deceased Shiv Charan.

One of the riders from the third motorcycle had then fired a shot Criminal Appeal No. 1475 of 2017 Page 2 that had hit Babu Singh on his side and back. The motorcycle

skidded and Shiv Charan and Babu Singh fell down. Guman

Singh had then fired at the chest of Shiv Charan. Satvir Singh

and Shyam Singh too had fired at Shiv Charan. Guman Singh,

Satvir Singh and Shyam Singh had also fired shots at Tara Singh

(PW-1) and Varun Singh (PW-4) who had managed to escape by

running towards the Hindaun City to save their lives. They had,

from STD booth near Chungi, informed their relatives about the

occurrence. On seeing a police vehicle, they drove along with

police to the place of occurrence.

4. However, this version as to their presence at the place of

occurrence and being eye-witnesses to the firing by Guman Singh

is a suspect and in grave doubt, in view of the testimony of Gulam

Navi (PW-7) the Investigating Officer and SHO Police Station

Hindaun City, who has deposed that on 30.08.2009 at around 5.30

p.m. information was received from an unknown person that

someone had been fired upon by another near Chauve ke bandh.

PW-7 on reaching the spot along with other police officials found

Babu Singh lying in an injured condition. Shiv Charan had already

died. One motorcycle was lying at the spot. On directions of

Gulam Navi (PW-7), the deceased Shiv Charan and Babu Singh

were taken to the hospital. Gulam Navi (PW-7) has not deposed Criminal Appeal No. 1475 of 2017 Page 3 and accepted presence of Tara Singh (PW-1) and Varun Singh

(PW-4) at the spot at 5.30. p.m. on 30.8.2009. As per PW-7, his

first meeting with Tara Singh (PW-1) was at the hospital at around

8.20 p.m., when a written complaint was given to him by Tara

Singh (PW-1). Upon receipt of the written complaint, steps were

taken for registration of the FIR. Similarly, Babulal Bhaskar (PW-

10) Sub-Inspector, has deposed that on 30.08.2009 at 5.30 p.m.

he had left the police station and had reached the hospital at

around 5.55 p.m. Around 8.20 p.m., he had initiated the

proceedings after preparing the panchnama etc. In his cross-

examination, PW-10 had testified that till 8.20 p.m. none of the

witnesses had disclosed and named the attacker(s) and they had

also not indicated as to the type of weapon used in the offence.

5. On reading testimonies of Gulam Navi (PW-7) and Babulal

Bhaskar (PW-10), we find that their versions contradict the version

given by Tara Singh (PW-1) and Varun Singh (PW-4) as to their

presence at the place of occurrence and their claim that they were

following the deceased Shiv Charan and the injured Babu Singh

on another motorcycle. Their presence is highly doubtful and their

eye-witness account apparently conjured, as they were not found

at the spot when Gulam Navi (PW-7) the SHO and Investigating

Officer had recached Chauve ke bandh at around 5.30 p.m. on Criminal Appeal No. 1475 of 2017 Page 4 30.08.2009. Gulam Navi (PW-7) in his cross-examination also had

accepted as correct that the informant Tara Singh (PW-1) was not

present at the place of the occurrence till the time Babu Singh was

sent to hospital. Between 5.30 p.m. to 8.20 p.m., PW-7 was not

informed and told as to who had fired upon Shiv Charan. First

conversation between Tara Singh (PW-1) and Varun Singh (PW-4)

and Gulam Navi (PW-7) was in the hospital at about 8.20 p.m.,

nearly 3 hours after the occurrence, and both had then for the first

time projected themselves as eye witnesses. The assertion and

claim of Tara Singh (PW-1) and Varun Singh (PW-4) of being eye-

witnesses to the incident was clearly on second thoughts and after

due deliberation.

6. Statements of Tara Singh (PW-1) and Varun Singh (PW-4), under

Section 161 of the Code of Criminal Procedure, 1973 (“the Code”,

for short), were recorded by the SHO and the Investigating Officer

Gulam Navi (PW-7) three days after the date of occurrence on

03.09.2009. This delay is substantial and assumes some

importance as it has been alleged that the FIR has been back

dated and was never sent to the Magistrate as required vide

Section 157 of the Code.

Criminal Appeal No. 1475 of 2017 Page 5

7. While the aforesaid contention as recorded in paragraph 6 may

not by itself be significant, but testimony of Babu Singh (PW-3) is.

Babu Singh, it is stated, had returned from Jaipur on 3.09.2009

and thereupon his statement under Section 161 of the Code was

recorded. Pertinently, Babu Singh (PW-3) in his examination-in-

chief had turned hostile and did not name the appellant and three

others who were charge-sheeted. Babu Singh’s presence on the

spot cannot be doubted, as he was the only injured witness. Babu

Singh (PW-3) did not depose as to the presence of Tara Singh

(PW-1) and Varun Singh (PW-4) on another motorcycle or that

they were following them. He had stated that he was fired from

behind and thereafter, had become unconscious and had fallen

down. On regaining consciousness, he had noticed police

personnel and a person holding camera. Thereafter, he was taken

to the hospital. He did not know who had fired at him. Babu

Singh (PW-3) was certainly conscious when he was brought to the

hospital because he had also signed the Medical Examination

Report / MLC. Babu Singh (PW-3) did not depose as to the

presence of the present appellant nor did he identify any of the

assailants.

8. In view of the testimonies of Babu Singh (PW-3) and Gulam Navi

(PW-7), there is a clear contradiction and direct conflict between Criminal Appeal No. 1475 of 2017 Page 6 the version given by them and Tara Singh (PW-1) and Varun

Singh (PW-4), who assert and claim their presence and being

eye-witnesses to the occurrence. We would for reasons stated

above rely on the version given by Babu Singh (PW-3), Gulam

Navi (PW-7) and Babu Lal Bhaskar (PW-10). Therefore,

identification by Tara Singh (PW-1) and Varun Singh (PW-4) of the

appellant- Guman Singh as one of the perpetrators who had fired

on Shiv Charan and Babu Singh (PW-3) is unreliable and should

not be accepted without substantial corroboration and supporting

material/evidence to establish involvement of the appellant-

Guman Singh.

9. On the aspect of corroboration, prosecution relies upon the FSL

report, exhibit P-48, opining that barrel residue examination of

‘8mm/.315’ country-made pistol (W/1) had revealed that pistol had

been fired, but, definite time of its last firing could not be

ascertained. The FSL report also opines that it was not possible

to link definitely the ‘8mm/.315’ Soft Round nose Copper

Jacketted Bullet ‘B/1’ from packet ‘D 1’ with the country-made

pistol (W/1) from packet ‘E’ due to lack of sufficient evidence.

Thus, the bullet ‘B/1’ recovered from the body of Babu Singh (PW-

3) would not be matched with the country-made pistol. The bullets

recovered from the body of deceased Shiv Charan were not sent Criminal Appeal No. 1475 of 2017 Page 7 for ballistic examination and comparison. This is surprising as

bullets were certainly recovered from the body of the deceased

Shiv Charan and no explanation is forthcoming why these bullets

were not sent for ballistic examination. Prosecution however relies

on the finding in the FSL report that the hole on the shirt worn by

Babu Singh appeared to have been caused by a copper jacketted

bullet. In the factual matrix and the evidence established and

proved, the aforesaid opinion on the hole in the shirt and the bullet

is rather a weak evidence that would not be sufficient to implicate

and corroborate the involvement the present appellant.

10. In Sunil Kumar v. State (Govt. of NCT of Delhi) (2003) 11 SCC

367, this Court had graded witnesses into genus of wholly reliable,

wholly unreliable, neither wholly reliable nor wholly unreliable and

had dealt with the consequences that flow from the testimonies

from each of these categories. In the present case, the

testimonies of Tara Singh (PW-1) and Varun Singh (PW-4) have to

be held to be in the second category as wholly unreliable. Even if

we treat their testimonies as falling in the third genus where the

Court has to treat the same with circumspection and look for

corroboration in material particulars by reliable evidence/

testimony, direct or circumstantial, the case of the prosecution

would fail, for there is nothing to support and show the Criminal Appeal No. 1475 of 2017 Page 8 involvement of the appellant in the crime other than the unreliable

attribution by Tara Singh (PW-1) and Varun Singh (PW-4). The

prosecution, therefore, has to fail as it has failed to prove that the

evidence has a ring of truth, is cogent, credible and trustworthy so

as to establish the charge beyond reasonable doubt.

11. As noticed above, the charge-sheet in the present case was filed

against present appellant Guman Singh and three others namely

Jagdish Singh, Shyam Singh and Satvir Singh. Jagdish Singh

was acquitted by the trial court and Shyam Singh and Satvir Singh

have been acquitted by the impugned judgment of the Division

Bench of the High Court.

12. In view of the discussion, we would accept the present appeal and

set aside the conviction of Guman Singh, who should be set free

forthwith unless he is required to be detained in any other case in

accordance with law.

......................................J. [INDIRA BANERJEE]

......................................J. [SANJIV KHANNA]

NEW DELHI;

MAY 24, 2019.

Criminal Appeal No. 1475 of 2017 Page 9