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PETITIONER: HARI SINGH & ANR.

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT:       01/10/1996

BENCH: G.N. RAY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      NANAVATI, J.      This 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.      Briefly 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. While 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. Accused 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. While 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 hospital. Harbhajan then  went to the house of one Chandra Shekar, got a complaint regarding the incident prepared and went with it

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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. After 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  380  I.P.C. Accused 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.      In 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 charges.      The 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. With 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

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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.      The 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. It was  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.      After 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,

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rightly treated  Exh. P-1  as the  F.l.R. and  committed  no error  in   relying  upon   the  same  for  the  purpose  of corrobration.      After 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. Even Babu  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.      The 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. Babu 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

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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 incident.      It was  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. Therefore, his  conviction will  have  to  be  altered  from Section 302  to Section  302 read  with Section  34  I  P.C. However,  the   order  of   sentence  imposed  upon  him  is confirmed.      In the  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 sentence.