State Of Rajasthan vs Arjun Singh & Ors

State of Rajasthan .... Appellant(s)

Versus

Arjun Singh & Ors. etc. .... Respondent(s)

WITH

CRIMINAL APPEAL NOs. 555-557 OF 2003

AND

CRIMINAL APPEAL NO. 558 OF 2003

J U D G M E N T

P.Sathasivam,J.

1) These appeals are filed against the common final

judgment and order dated 26.04.2002 passed by the High

Court of Judicature for Rajasthan, Jaipur Bench, Jaipur in

D.B. Criminal Appeal Nos. 504, 533 and 673 of 1995 whereby

the High Court disposed of the appeals acquitting Karan

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Singh, Laxman Raigar, Bahadur Singh, Smt. Swaroop Bai,

Smt. Gyan Kanwar and Smt. Bhagwan Kanwar of all the

charges and altered the conviction and sentence of Shivraj

Singh, Banney Singh and Arjun Singh from Sections 302/149

IPC and 307/149 IPC to Section 302/34 and 307/34 IPC

passed by the trial Court.

2) Brief facts:

(a) On 24.12.1991, at about 09:30 a.m., an information was

received by the In-charge, Police Out-post Anwa that cross

firing had taken place between the Rajputs of that village.

After recording the said information in Rojnamcha (Ex. P31),

immediately the police proceeded towards the spot and

recorded Parchabayan of injured Himmat Raj Singh (Ex. P32)

at about 11.40 a.m. It was stated by Himmat Raj Singh (since

deceased) that at 9.30 a.m., when he was standing outside his

house, Arjun Singh fired at him from a muzzle loaded gun

from the roof of Karan Singh thereby 2-3 bullets hit him on

the left hand and another 2-3 hit his abdomen and left thigh.

On hearing his cries, two of his brothers, namely, Raghuraj

Singh (since deceased) and Raj Singh (PW-2) came there and

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took him inside the house and after leaving him there, when

they were going to inform the police at Police out-post, Anwa,

Bheem Singh and Gajender Singh (who are now absconding),

Banney Singh, Karan Singh and Shivraj Singh fired gunshots

at them, as a result of which, both of them received injuries.

Thereafter, accused Bahadur Singh came with a gandassa.

The other accused, Laxman Raigar also jumped into their

house. It was also stated that Smt. Swaroop Bai, Smt. Gyan

Kanwar and Smt. Bhagwan Kanwar were also present on the

roof of Karan Singh and they tried to kill the other family

members of the deceased with deadly weapons.

(b) The moment Raghuraj Singh and Raj Singh (PW-2)

received injuries, Roop Singh, their father immediately rushed

to the Police Out-post to inform the Police about the incident.

The police officials reached at the spot and on the basis of the

statement of Himmat Raj Singh, a First Information Report (in

short `the FIR') being No. 228/1991 was registered against the

accused persons for the offences punishable under Sections

307, 147, 148 and 149 IPC. The injured persons, Raghuraj

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Singh, Himmat Raj Singh, Dhiraj Raj Singh and Raj Singh

were taken to the M.B.S. Hospital at Kota for treatment.

(c) Shri Ajay Kumar Gupta, (PW-18), Munsif and Judicial

Magistrate (North), Kota recorded the statements of Himmat

Raj Singh and Raj Singh (PW-2). Since Raghuraj Singh was

not medically fit to make a statement, his statement was not

recorded. On the same day, Raghuraj Singh died in the

Hospital, therefore, offence punishable under Section 302 IPC

was added. On 29.01.1992, Himmat Raj Singh also died in

the Hospital. After due investigation, the police submitted

four charge sheets at different stages against Arjun Singh,

Banney Singh, Shivraj Singh, Bahadur Singh, Smt. Swaroop

Bai, Smt. Gyan Kanwar, Smt. Bhagwan Kanwar, Karan Singh

and Laxman Raigar.

(d) On 07.09.1995, the Additional Sessions Judge, Kota,

after examining 30 prosecution witnesses and 8 defence

witnesses convicted Karan Singh under Sections 148,

302/149, 307/149 IPC and Section 3/27 of the Arms Act,

1959, Shivraj Singh, Banney Singh and Arjun Singh under

Sections 148, 302/149, 307/149 IPC and Smt. Swaroop Bai,

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Smt. Gyan Kanwar, Smt. Bhagwan Kanwar, Laxman Raigar

and Bahadur Singh under Sections 148, 302/149, 307/149

and 452 IPC and sentenced all of them to undergo rigorous

imprisonment.

(e) Aggrieved by the judgment of the trial Court, Arjun

Singh, Banney Singh, Shivraj Singh, Bahadur Singh, Smt.

Swaroop Bai, Smt. Gyan Kanwar and Smt. Bhagwan Kanwar

filed D.B. Criminal Appeal No. 504 of 1995, Laxman Raigar

filed D.B. Criminal Appeal No. 673 of 1995, Karan Singh filed

D.B. Criminal Appeal No. 533 of 1995 and Roop Singh-the

complainant, filed D.B. Criminal Revision Petition No. 250 of

1996 before the High Court of Judicature for Rajasthan,

Jaipur Bench at Jaipur.

(f) On 26.04.2002, the High Court, by a common impugned

judgment, set aside the order of conviction and sentence

passed by the trial Judge against Karan Singh, Laxman

Raigar, Bahadur Singh, Smt. Swaroop Bai, Smt. Gyan Kanwar

and Smt. Bhagwan Kanwar and acquitted them of all the

charges. As regards Arjun Singh, Banney Singh and Shivraj

Singh, their conviction and sentences under Sections 302/149 5

and 307/149 IPC were altered to Sections 302/34 and 307/34

IPC.

(g) Against the acquitted persons, the State of Rajasthan

filed Criminal Appeal Nos. 552-554 of 2003, Raj Singh, son of

the Complainant-Roop Singh, who died during the pendency of

the case, filed Criminal Appeal Nos. 555-557 of 2003. Against

the order of conviction and sentence, accused Arjun Singh,

Banney Singh and Shivraj Singh filed Criminal Appeal No. 558

of 2003 before this Court by way of special leave petitions.

3) Heard Mr. S.R. Bajwa, learned senior counsel for the

convicted appellants, Dr. Manish Singhvi, learned Additional

Advocate General for the State of Rajasthan and Ms.

Aishwarya Bhatti, learned counsel for the son of the

complainant.

Issues for consideration:

4) The question for consideration in these appeals is

whether the High Court was justified in acquitting Bahadur

Singh, Laxman Raigar, Karan Singh, Smt Swaroop Bai, Smt

Gyan Kanwar and Smt Bhagwan Kanwar and also altering the

conviction from 302/149 and 307/149 IPC to Sections 302/34 6

and 307/34 insofar as Arjun Singh, Banney Singh and Shivraj

Singh.

5) Since the issues, allegations and overt acts are inter-

connected, let us consider all the available materials and

ascertain whether the prosecution had established its case as

initiated at the first instance.

Discussion:

6) As mentioned earlier, on 24.12.1991, at about 09:30

a.m., all the accused gathered on the roof of Karan Singh.

Accused- Arjun Singh fired at Himmat Raj Singh (since

deceased) from the roof of Karan Singh from a capped gun

thereby few bullets hit the deceased on the left hand and

another 2-3 hit his abdomen and left thigh. On hearing his

cries, brothers of the deceased, Raghuraj Singh and Raj Singh

(PW-2) came there and took injured Himmat Raj Singh inside

their house and after leaving him there, when both of them

were going to police out-post to lodge a complaint, at that

time, Bheem Singh, Gajendra Singh, Banney Singh, Karan

Singh and Shivraj Singh fired on them resulting in the death

of Raghuraj Singh. Other accused Bahadur Singh, Laxman

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Raigar, Smt Swaroop Bai, Smt. Gyan Kanwar and Smt

Bhagwan Kanwar were also present on the roof of Karan Singh

and they tried to kill other family members with deadly

weapons. It is also the claim of the prosecution that the

accused persons attempted on the life of Dhiraj Raj Singh - the

brother of the deceased. The injured persons, namely,

Raghuraj Singh, Himmat Raj Singh, Raj Singh and Dhiraj Raj

Singh were taken to Kota Hospital. Raghuraj Singh died on

the same day and Himmat Raj Singh died on 29.01.1992 in

the hospital, however, Raj Singh survived. According to the

High Court, there is complete consistency and credible

evidence as far as three accused persons, namely, Arjun

Singh, Banney Singh and Shivraj Singh are concerned,

however, in respect of other six, there is no direct evidence and

the case pleaded by the prosecution is unacceptable and

acquitted them of all the charges.

7) The prosecution examined as many as 30 witnesses in

support of its case. In the statements recorded under Section

313 of the Code of Criminal Procedure, 1973 (hereinafter

called as "the Code"), all the accused denied the prosecution

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evidence and informed the Court that they were falsely

implicated. In addition to their statements, 8 witnesses were

examined in their defence.

8) Before considering the evidence of eye-witnesses, let us

analyse the evidence of the Dr. Manmohan Sharma (PW-1),

Medical Jurist in M.B.S. Hospital, Kota, who examined

Raghuraj Singh, Himmat Raj Singh and Raj Singh on

24.12.1991 and Dhiraj Raj Singh on 28.12.1991. The injuries

noted by Dr. Manmohan Sharma (PW-1) in Exs. P1-P4 are

relevant, they are as follows:-

"Raghuraj Singh (Ex. P1)

1. Gunshot wound 1/2" x 3/4" oval with inverted margins

blackening and tattooing on left shoulder outside.

2. Gunshot wound 3/4" x 1/2" oval with blackening on outer

side lt. iliac crust posteriolateral aspect upper quadrant of lt.

buttock.

3. Gunshot wound 1/2" x 1/2" on lt. lip 4" medial to No. 1.

4. Gunshot wound 1/4" x 3/4" upper quadrant of lt. buttock

5" below No. 1.

5. Gun shot wound 1/2" x 3/4", 2" medial to No. 1 on lt.

buttock.

6. Gunshot wound 1/3" x 1/3" on sacral gorder of lt.

buttock 3" away from middle.

7. Gun shot wound 1/3" x 1/3" 1" below No. 6, 3 & 1/2"

away from middle.

8. Gun shot wound 1/3" x 1/3" 1/2" below No. 6, 3 & 2"

away from middle.

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Himmat Raj Singh (Ex. P2)

1. Gun shot wound 1/2" x 1/2 circular with inverted margin

with blackish.

2. Gun shot wound 1/2" x 3/4" oval with blackening on the

side of the abdomen.

3. Gun shot wound 3/4" x 3/4" oval iliac with blackening.

4. Gun shot wound 1/2" x 1/2" circular on left arm upper

outer side with bleeding.

5. Gun shot wound 1/2" x 3/4" oval 2" below slight medial to

forearm.

6. Gun shot wound 1/2" x 3/4" oval with inverted margin on

left forearm innerside.

7. Gun shot wound 1/2" x 1/2" on the left hand.

Raj Singh (Ex. P4)

1. Eight gun shot wounds about 1/2" x 1/2" size to 1" x 3/4"

scattered in front of left thigh blackening tattooing margin

inverted.

Dhiraj Raj (Ex. P3)

1. Contusion 2" x 1" abrasion on left arm.

2. Contusion 3" x 1 and 1/2" with abrasion on left forearm.

3. Lacerated wound 1" x 1/3" x 1/3" abdomen right side

outside in auxiliary 3" below knee joint."

9) With reference to the specific question about the injuries,

Dr. Manmohan Sharma (PW-1) has explained to the Court that

all the injuries referred to above were caused by gun shots. It

was further revealed that Raj Singh had also sustained

injuries. It is seen from the X-ray Report (Ex.P5) that Raj

Singh had fracture of femur bone and according to Dr.

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Manmohan Sharma (PW-1), the injuries were serious in

nature. He also opined that the injuries of Himmat Raj Singh

and Raghuraj Singh were sufficient to cause death in the

ordinary course of nature. In his evidence, he also explained

that the death of Himmat Raj Singh was caused due to

septicemia shock as a result of multiple ante-mortem injuries

to abdomen. With reference to a suggestion, PW-1 had denied

that blackening and tattooing marks can be possible only

when gun shots were fired from a distance of 3 or 4 feet. In

respect of the same, Dr. Sharma, (PW-1), explained in detail in

his cross-examination that the same marks are possible even

in the case of gun shots which are fired from a distance of

more than 3 or 4 feet and it depends upon the nature of gun,

gun powder, cartridges etc. Raj Singh, (PW-2), in his evidence,

has stated that the accused Arjun Singh was standing on the

roof of the house of Karan Singh and fired from muzzle loaded

gun at Himmat Raj Singh. Though there is little discrepancy

as to the distance from the upper portion of the house and the

actual scene of occurrence, it cannot be concluded that the

injuries on Raghuraj Singh, Himmat Raj Singh and Raj Singh

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were not caused by fire arms. In this regard, it is relevant to

point out the description of injuries as noted by Dr. Sharma

(PW-1) in Exs. P1-P4 which we have extracted earlier. In

addition to the same, it is seen from the evidence of PW-1 that

the blackening marks found around the wounds and the dead

body confirmed that the deceased were within a distance of 6

feet from the assailants when they received the injuries.

10) Learned senior counsel for the accused persons

contended that in the absence of recovery of pellets from the

scene of occurrence or from the body of the injured persons, it

is highly doubtful as to the scene of occurrence and whether

such incident did take place in the manner suggested by the

prosecution. Learned counsel appearing for the complainant

pointed out that though there was an entry in Malkhana

Register (Ex. P31A) wherein it was stated that a sealed packet

containing pellets was deposited but prosecution failed to lead

any evidence on this point. It was also pointed out that

though a report was received from the Forensic Science

Laboratory, no evidence regarding recovery of the pellets was

produced. As rightly pointed out by the learned Additional

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Advocate General appearing for the State that mere non-

recovery of pistol or cartridge does not detract the case of the

prosecution where clinching and direct evidence is acceptable.

Likewise, absence of evidence regarding recovery of used

pellets, blood stained clothes etc. cannot be taken or

construed as no such occurrence had taken place. As a

matter of fact, we have already pointed out that the gun shot

injuries tallied with medical evidence. It is also seen that

Raghuraj Singh and Himmat Raj Singh, who had died,

received 8 and 7 gun shot wounds respectively while Raj Singh

(PW-2) also received 8 gun shots scattered in front of left thigh.

All these injuries have been noted by the Doctor (PW-1) in his

reports Exs. P1-P4.

11) If we analyze the evidence of Dr. Manmohan Sharma

(PW-1), his reports, Exs.P1-P4 and the evidence of Raj Singh

(PW-2), it leads to a conclusion that gun shot injuries tallied

with the medical evidence and both the deceased persons died

due to the same reason. Similar conclusion arrived at by the

High Court cannot be doubted.

13 12) Coming to the contention relating to the motive, it is not

in dispute that Raghuraj Singh and Himmat Raj Singh died

due to gun shot injuries. The reliable eye-witnesses have

stated that there was previous enmity between them and

litigation was going on between the accused-Karan Singh and

the complainant. Even in the absence of motive, in view of the

assertion of eye-witnesses, particularly, Raj Singh, (PW-2),

coupled with the medical evidence as seen from Exs. P1-P4, by

the Doctor (PW-1), the case of the prosecution cannot be

thrown out. In a catena of decisions, this Court has held that

motive for doing a criminal act is generally a difficult area for

the prosecution to prove since one cannot normally be seen

into the mind of another. Motive is the emotion which impels

a man to do a particular act. Even in the absence of specific

evidence as to motive, in view of the fact that in the case on

hand, two persons have been killed and one sustained injuries

due to fire arms, the case of the prosecution cannot be thrown

out on this ground.

13) Now, let us consider the oral evidence led in by the

prosecution. We have already pointed out that though the

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prosecution has examined as many as 30 witnesses, they

heavily relied only on 6 witnesses and out of these, Raj Singh

(PW-2), Dhiraj Raj Singh (PW-3) and Brij Raj Singh (PW-4) are

brothers, Roop Singh (PW-6) is their father and Durga

Shankar (PW-5) and Satya Narain (PW-9) were working as

labourers in the house of Roop Singh at the time of

occurrence. It is true that the names of PWs 3, 4 and 6 were

not mentioned either in parchabayan (Ex. P32) or in the

statements, Exs. P22-23, recorded by the Judicial Magistrate,

(PW-18) on the day of the occurrence.

14) It was also pointed out that all the eye-witnesses,

particularly, PWs 3, 4 and 6 being brothers and father of the

deceased, they are interested in their version and no reliance

need to be placed on their statements. We are unable to

accept the said contention. This Court, in a series of

decisions, has held that the testimony of such eye-witnesses

should not be rejected merely because witnesses are related to

the deceased. This Court has held that their testimonies have

to be carefully analysed because of their relationship and if the

same are cogent and if there is no discrepancy, the same are

15

acceptable vide Abdul Rashid Abdul Rahiman Patel & Ors.

vs. State of Maharashtra (2007) 9 SCC 1. Likewise, minor

discrepancies in the evidence of eye-witnesses are also

immaterial. However, as rightly pointed out, if Dhiraj Raj

Singh (PW-3) had sustained some injuries, his name could

have been mentioned in Exs. P22, P23 and P32 which were

earliest versions. In those documents, the names of Raghuraj

Singh, who died on the same day and Himmat Raj Singh, who

died later and Raj Singh, who received gun shot injuries alone

were mentioned and none else. Another aspect, as rightly

pointed out is that when the injured persons were examined

by the Doctor on the same day, admittedly, PW-3 was

examined only on the fourth day of the incident and it was

seen that he did not receive any gun shot injury. Considering

all these aspects including the fact that there is no proof of

receiving gun shot injury to PW-3 and also taking note of the

fact that he was 13 years of age at the time of occurrence, as

rightly pointed out by the High Court, his presence itself is

doubtful.

16 15) The remaining eye-witnesses, as per the prosecution

version, are PWs 2, 4 and 6. It was demonstrated before us by

the learned senior counsel for the accused that the names of

PWs 4 and 6 did not occur in parchabayan (Ex. P 32) as well

as in the statements (Exs. P22 and P23) recorded by Shri Ajay

Kumar Gupta, (PW-18), Judicial Magistrate, on the day of

occurence. The statement in Ex. P32 was recorded at 11:40

a.m. and the incident took place at about 09:30 a.m. Though

it was recorded within two hours, as rightly pointed out, while

mentioning the details of the occurrence, names of the

assailants, eye-witnesses, the presence of Dhiraj Raj Singh

(PW-3), Brij Raj Singh (PW-4) and Roop Singh (PW-6) was not

mentioned. We have already noted that even in Exs. P22-23,

the names of PWs 3, 4 and 6 were not noted and no

explanation has been offered for their absence. The

verification of those documents clearly show that only the

names of Raghuraj Singh and Himmat Raj Singh (both died

due to gun shot injuries) and Raj Singh (PW-2) who also

received gun shot injuries were noted and except these names,

none else was noted. Another important factor is that Himmat

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Raj Singh, Raghuraj Singh and Raj Singh (PW-2) alone were

medically examined on the same day whereas Dhiraj Raj Singh

(PW-3) was examined after 4 days of the incident and that too

by the very same Doctor (PW-1). There is no explanation at all

for non-examination of PW-3 by the Doctor along with other

injured witnesses. In these circumstances, as rightly observed

by the High Court, the presence of eye-witnesses, namely, PWs

3, 4 and 6 at the place of occurrence on the date and time as

pleaded by the prosecution is highly doubtful. We agree with

the said conclusion.

16) In the light of the above conclusion, the only witness

available to support the case of the prosecution is Raj Singh

(PW-2). Let us consider his evidentiary value and how far he

supported the case of the prosecution. Mr. Bajwa, learned

senior counsel for the accused, by pointing out certain

contradictions, submitted that it is not safe to convict the

accused based on his evidence. It is also pointed out that Raj

Singh (PW-2) is highly interested witness and closely related to

eye-witnesses. It was further pointed out that in the absence

of any neighbour, conviction based on the testimony of PW-2

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alone is not sustainable. In the light of the above

submissions, we have carefully scrutinized the evidence of PW-

2. First of all, merely because the witness is related to eye-

witnesses or the family of the deceased is not a ground for

rejection vide Kuldip Yadav vs. State of Bihar (2011) 5 SCC

324. It was also held that merely because the prosecution has

not examined neighbours, it cannot be claimed that it is fatal

to their case, when the evidence of eye-witnesses examined on

their side is found to be acceptable and reliable. Raj Singh,

(PW-2), in his evidence, in categorical terms has asserted that

he saw five to seven persons standing on the roof of the house

of Karan Singh. He had specifically mentioned the names of

those persons as Bahadur Singh, Shivraj Singh, Banney

Singh, Smt Swaroop Bai, Smt Gyan Kanwar, Smt Bhagwan

Kanwar, Gajendra Singh and Karan Singh. Inasmuch as in

the parchabayan (Ex. P32), only the name of Arjun Singh and

as per Ex. P22 the names of Arjun Singh and Banney Singh

was mentioned, who were present on the roof at the relevant

time, as rightly observed by the High Court, the claim of Raj

Singh (PW-2) that all the accused persons were standing on

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the roof is not believable, however, his assertion that two

persons Arjun Singh and Banney Singh were on the roof

cannot be denied. Even if we eschew certain portion from the

evidence of PW-2, his assertion and the statement regarding

the involvement of Arjun Singh, Shivraj Singh and Banney

Singh cannot be disputed. In categorical terms, he explained

the role played by these persons. It is clear from his evidence

that he received gun shot injuries which is also supported by

medical evidence. In view of the same, his presence at the

time of occurrence cannot be disputed and is found to be

proved. This is also strengthened from his statement in

parchabayan (Ex. P32) and Ex. P22 statement given to

Judicial Magistrate (PW-18). A perusal of Ex. P32 makes it

clear that it was Arjun Singh who first fired a gun shot at

Himmat Raj Singh and subsequently Bheem Singh, Gajendra

Singh (both absconding) Banney Singh and Shivraj Singh also

fired at Raghuraj Singh and Raj Singh causing injury to them.

Ex. P32 also clearly shows that there are specific allegations of

causing gun shot injuries against Shivraj Singh, Arjun Singh

and Banney Singh. In the same manner, verification of Ex.

20 P22 shows that Arjun Singh and Banney Singh fired at the

deceased Himmat Raj Singh and, thereafter, Bheem Singh and

Shivraj Singh fired at the brothers of Himmat Raj Singh when

they were going to inform the police. Though Mr. Bajwa

pointed out certain discrepancies as to the number of gun

shots, in view of the number of injuries, as seen from Exs. P1-

P4, supported by the evidence of Dr. Manmohan Sharma (PW-

1), the said objection is liable to be rejected and participation

of these three accused, namely, Arjun Singh, Banney Singh

and Shivraj Singh is clearly proved through various

circumstances including the evidence of PW-2.

17) Finally, learned senior counsel for the accused pointed

out that inasmuch as Himmat Raj Singh died after 35 days

due to septicemia, the Courts below are not justified in

convicting the accused persons for an offence under Section

302 IPC for his death. Considering the medical evidence that

Himmat Raj Singh sustained 7 gun shot injuries which were

sufficient to cause death in the ordinary course, we are

satisfied that the death of Himmat Raj Singh undoubtedly falls

within the ambit of 302 IPC.

21 18) The materials placed by the prosecution clearly prove the

guilt against the three convicted accused, namely, Shivraj

Singh, Arjun Singh and Banney Singh who were armed with

guns and with their common intention they fired gun shots

resulting in death of Raghuraj Singh and Himmat Raj Singh as

well as causing injuries to Raj Singh (PW-2), in such

circumstances, their conviction and sentence by both the

courts have to be confirmed.

19) Dr. Manish Singhvi vehemently argued as to the role of

the acquitted accused. As discussed in the earlier paras and

on going through the evidence relating to their role and the

detailed analysis by the High Court, we agree with the said

conclusion and reject his arguments. For the same reasoning,

the appeals filed by the son of the complainant are also liable

to be dismissed.

20) In view of the above discussion and conclusion, we agree

with the decision of the High Court, consequently, all the

appeals are dismissed.

...........................................J.

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(P. SATHASIVAM)

...........................................J.

(H.L. GOKHALE)

NEW DELHI;

SEPTEMBER 2, 2011.

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