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PETITIONER: SAHAB SINGH & ANR. ETC.& STATE OF RAJASTHAN

       Vs.

RESPONDENT: STATE OF RAJASTHAN & SAHAB SINGH & ANR. ETC.

DATE OF JUDGMENT:       03/03/1997

BENCH: MADAN MOHAN PUNCHHI, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                  THE 3RD DAY OF MARCH,1997. Present:            Hon’ble Mr.Justice Madan Mohan Punchhi            Hon’ble Mr.Justice K.T.Thomas                       Girish Chandra, A.K.Srivastav., Sr.Adv., Sushil Kumar Jain,/Advs.with him for the appellants K.S.Bhati, Adv. for the Petition in S.L.P.(Crl.) No.3687/94 Sushil Kr.Jain, Adv. for Ms.Pratibha,Jain, Adv. for Respondent No.5 & 6 in S.L.P. (Crl.) No.3687/94                       J U D G M E N T      The following Judgment of the Court was delivered :                             WITH      SPECIAL LEAVE PETITION (CRIMINAL) NO.3687 OF 1994                       J U D G M E N T Thomas J.      Seven persons were arrayed as accused in a murder trial before the  Sessions Court  for the murder of one Sher Singh which took  place on  27.7.1989 around 6.00 p.m. and all the seven  were  convicted  under  sections  302,148  read  with section 149,  Indian Penal  Code. On  appeal, the High Court acquitted five  of them  and  confirmed  the  conviction  as against two  of them  (A1-Sahab Singh  and  A5-Bachu  Singh) under section 302 with the aid of section 34, IPC. Both were sentenced to  life imprisonment  and a  fine  of  Rs.5,000/- each. The appeal before us has been filed by those convicted persons by  special leave.  State of Rajasthan has moved for special leave  to appeal  against acquittal of the remaining accused. As  we heard  the whole case we are not inclined to grant special leave to the State of Rajasthan as against the acquittal. However,  we proceed to consider the appeal filed by the convicted persons Sahab Singh and Bhim Singh.      The case  against them,  in short,  is that they caused the murder  of  Sher  Singh  who  was  the  husband  of  PW4 (Pushpa). Just  before that  Sher Singh reached the bus stop at Sait  in Osmai  on a  motor-cycle which  he parked on the road and  was about  to go  to the nearby shop. Then all the assailants surrounded  him. Appellant  Bachu Singh  who  was armed with  a katta (a country-made pistol). fired a shot at him. When  the deceased  tried to run away, he fell down and

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then the other assailants including Sahab Singh attacked him with farsa  and lathis. When Sher Singh died, the assailants left the scene.      There is  no dispute  that Sher  Singh died at the said spot with  many injuries.  Though the defence suggested that Sher Singh  might have  died in  a motor-cycle accident, the various injuries  noticed on  his body  by  the  doctor  who conducted post-mortem examination are undoubtedly suggestive of a  homicidal death.  He had six incised wounds of varying sizes on  his head, besides two oval shaped lacerated wounds - one on the lateral side of his face and the other near his left ear.  The doctor  unmistakably described  the lacerated wound as  a gun  shot injury,  one was the entry wound while the other  was the  exit wound.  His hyoid  bone, larynx and trachea  were   fractured  while   the  carotid  artery  was lacerated. From  the aforesaid  data there is no escape from the conclusion that deceased was murdered.      The two  eye-witesses  who  supported  the  prosecution version regarding  the occurrence  are Pushpa  (PW4) wife of the deceased  and Bhim  Singh (PW13)  who was the brother of Sher Singh.  Though some other persons were examined as eye- witnesses they  had turned  hostile. The trial court and the High Court  found the  testimony of  the  two  eye-witnesses quite reliable  and hence  acted on  them for convicting the two appellants.      First information  statement was  given by  PW13 (Bhim- Singh) at  7.30 a.m.  at the Police Station. He nerrated the incident therein  broadly in the same manner as he described it in  his evidence. PW4 (Pushpa)  said that she happened to witness the occurrence as she was returning from Delhi where her father was residing and when she reached the bus-stop at Sait, Bhim  Singh- her brother-in-law - told her that he was expecting Sher  Singh to reach there and then she too waited for him.  When Sher  Singh reached there on a motor-cycle he parked it  on the  road-side to buy something from the shop. It was  then that  the assailants surrouded him and attacked him. She  described the  role played  by the  assailants  in accordance with the prosecution case.      Learned counsel  for the  appellants contended that the two courts ought not have placed reliance on the evidence of Pushpa (PW4)  for the  simple reason  that her  name was not even spelled  in the  FIR which  was furnished by none other than Bhim  Singh, the brother of deceased. True, the name of Pushpa is not mentioned in the first information report. But this is  a case  where serious  allegation have been made by the complainant  regarding the  role  of  the  investigating officer and  even the Sessions Judge made scathing criticism on  the   manner  in  which  PW-19,  investigating  officer, conducted investigation  in this  case. Even  that apart, if Bhim Singh had chosen not to mention the name of his sister- in-law being  a lady,  the testimony of Pushpa is not liable to be  thrown over  board on  that reason  alone. We bear in mind the  fact that  despite this drawback her testimony was believed by  the trial  court and  the High  Court. We  were taken through  the evidence  of PW-4 (Pushpa) and we too are not disinclined  to discard her evidence merely because Bhim Singh did not mintion her name in the FIR.      At any rate, nothing could be said against the evidence of Bhim  Singh except that he waited till next morning to go to the  Police Station  for furnishing  the firs information statement. Learned counsel contended that the possibility of deceased sustaining injuries in a different manner and these two witnesses  coming to know of it only next morning cannot be ruled  out. We  are, however, not persuaded to accept the said contention.  We bear in mind the fact that the incident

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happened near  a bus-stand and it is quite unlikely that the widow and  the brother  of the  deceased would  have come to know of the murder of the deceased only next morning. So the mere fact  that first  information report was lodged by PW13 only on  the next morning is hardly sufficient to reject the evidence of  PW13. Both  the Courts have found the testimony of PW4  reliable. In  the absence of good reasons we are not persuaded to take a different view about his evidence.      We find no reason to dissent from the finding which the High Court  has adopted regarding the involvement of the two appellants  in  the  murder  of  deceased  Sher  Singh.  We, therefore, dismiss this appeal.