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CASE NO.: Appeal (crl.)  1733 of 1996

PETITIONER: State of Rajasthan       

RESPONDENT: Taran Singh & Anr.               

DATE OF JUDGMENT: 08/10/2003

BENCH: N.Santosh Hegde & B.P.Singh.

JUDGMENT: J U D G M E N T  

SANTOSH HEGDE,J.

       The State of Rajasthan is in appeal before us against the  judgment of the High Court of Rajasthan at Jodhpur made in  Criminal Appeal No.111 of 1991. The appeal before the High  Court was against a judgment of Additional Sessions Judge  No.1, Hanumangarh who by the said judgment, while acquitting  13 other accused persons, convicted the respondents herein for  offences punishable under Sections 302 and 302 read with 34  IPC. By the impugned judgment, the High Court has allowed  the appeal setting aside the conviction and sentence imposed on  the respondents by the trial court. Brief facts necessary for the disposal of this appeal are as  follows :         Because of certain enmity arising out of political rivalry  between the group of respondents herein and the complainant  PW-1, it is stated that on 10.6.1988 at about 11 \026 11.30 p.m. in  Chowk Bazar near the bus-stand in the village Tibi, respondents  herein and 13 others formed themselves into an unlawful  assembly and attacked deceased Mahavir Singh in which attack  second respondent herein exhorted the first respondent to shoot  said Mahavir Singh who belonged to the group of complainant  and pursuant to the said exhortation A-1 shot said Mahavir  Singh with a 12 bore gun which shot hit him on the back of his  neck consequent to which Mahavir Singh fell down dead. The  incident in question according to prosecution, was witnessed by  PWs.1 and 2 and PW-3 who happened to come to the place of  incident immediately thereafter. The complaint in this regard  was lodged in Police Station Tibi by about 10.40 a.m. on  11.6.1988, and the special report in regard to this incident  actually reached the jurisdictional Magistrate at about 12 Noon  on that day.  The investigation in the case was conducted by PW-7 and  based on the evidence of PWs.1 to 3 coupled with the  supporting evidence led by the prosecution, the trial court came  to the conclusion that the case against A-3 to A-15 has not been  established by the prosecution, hence, acquitted them, while it  found A-1 guilty of an offence punishable under Section 302  and A-2 was convicted for an offence punishable under Section  302 read with 34 IPC. The High Court in appeal on re-appreciation of evidence  came to the conclusion that the prosecution has failed to  establish its case even against these accused persons, hence,  allowed the appeal, setting aside the judgment of the trial court.         Mr. Alok Bachawat, learned counsel appearing for the  appellant-State, contended that the High Court committed an  error in coming to the conclusion that PWs.1 and 2 could not

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have witnessed the incident in question. According to him,  these two witnesses (PWs. 1 and 2) who had gone to see the  brother of the deceased who was injured in a previous incident,  were on their way-back from the hospital along with the  deceased when the deceased was attacked by respondent No.1  at the instance of respondent No.2, because the deceased was  the brother of said Surendra Singh and a party man of their  political rival. Learned counsel also submitted that the court  below erred in coming to the conclusion that the complaint in  question was filed belatedly after due deliberations. He also  challenged the finding of the High Court which held the place  of incident as projected by the prosecution has not been  established.   

Mr. Sushil Kumar, learned senior counsel appearing for  the respondents, supported the judgment of the High Court.          From a perusal of the judgment of the High Court, it is  seen that the High Court has allowed the appeal on following  grounds : (i)     Presence of PWs.1 and 2 at the place of incident is  doubtful; (ii)   Though admittedly deceased was bleeding profusely  and he was carried by PWs.1 and 2 to the hospital their  clothes were not blood-stained; (iii) The version of PWs.1 and 2 as to the nature of attack  is contrary to medical evidence and there is a serious  doubt in regard to the place of occurrence;  (iv) The report of the ballistic expert does not support the  prosecution case; (v) The defence version of the incident in question is  more probable. (vi) The contradiction between the evidence of PW-7,  and I.O. on one hand and PWs.1 and 2 on the other  creates serious doubt as to prosecution case. (vii) The prosecution has withheld material evidence  which would have supported the defence case.  

       While coming to the above conclusions, the High Court  in regard to the presence of PWs.1 and 2 at the place of incident  observed that their presence there was doubtful because they  having come to the hospital at Tibi to visit their relative who  were allegedly injured in an earlier attack by the members of  the accused group would not have left the hospital when the  said injured Surendra Singh was still unconscious and  unattended, that too taking with them the deceased who was the  real brother of the said patient and who was present there to  attend the patient, which act according to the High Court is  opposed to normal human conduct in the absence of any special  reason for doing so. The court also observed that the accused  persons admittedly did not have any such motive to kill the  deceased, therefore, their waiting at the bus-stand for the  deceased to come there, per chance, cannot also be accepted  because they had no knowledge that he would be passing  through the said place. Even the motive to kill suggested by  these witnesses for the attack on the deceased i.e. the deceased  was the brother of injured Surendra Singh, is something which  cannot be easily accepted. Apart from these facts, the High  Court also took note of the fact that though deceased was  profusely bleeding and these two witnesses carried him nearly  200 yards to the hospital, neither of the witnesses’ clothes were  blood-stained which is very unusual and most unlikely. The  High Court noticed the following observations of the trial court  in regard to the non existence of the blood on the clothes of  PWs. 1 and 2 :

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       "So far as the question of the clothes of  these two not being stained by blood of the  deceased, Mahavir Singh is concerned, it is not  essential that his blood must be stained with the  cloth because enough blood had fallen at the place  of incident and it also depend how they picked up  the deceased for getting blood stains. If there  clothes had contacted wound, then only, there  would have been blood stain, but there is no  evidence as to how the deceased was picked up  and taken to the hospital. Thus in this circumstance  on not being blood stained, it cannot be said that  deceased Mahavir Singh had not taken to hospital  by Dayaram and Vijay Pal from the place of  incident."

       Having noticed this explanation the High Court came to  the conclusion that this is an inference which could not have  been drawn by any reasonable person from the material on  record and we are in agreement with the said finding of the  High Court because we notice from the evidence of PWs.1 and  2 when they picked up the deceased, he was still bleeding  profusely and according to them, PW-1 carried him on his  shoulder while PW-2 held the chest of the deceased. Frankly we  are unable to understand how the deceased could have been  carried in the manner spoken to by these 2 witnesses. Be that as  it may, as held by the High Court in our opinion, if really these  two witnesses carried the deceased, the possibility of these  witnesses’ clothes being not blood-stained, is next to  impossible. In this background, if we examine the narration of  incident by these two witnesses, like the High Court, we also  notice that according to these witnesses when they came from  the hospital and started walking towards their village, on the  way they found the accused persons and their followers waiting  in a jeep and a tractor abusing abovesaid Surendra Singh. We  first of all, do not find any acceptable reason why the accused  persons should have been abusing said Surendra Singh amongst  themselves when there was nobody from the side of Surendra  Singh to listen to said abuses. That apart, we notice it is the  version of these two witnesses that the deceased decided to  bring about peace between the two groups, hence, proceeded  towards the accused saying that now since the election is over,  let there be no fight any further. It was at this stage, A-2  exhorted A-1 to kill the deceased stating that he is the brother  of Surendra Singh, and when the deceased heard this  exhortation, he allegedly turned around and ran which would  mean he started running towards the hospital from where he  came. At that time, A-1 shot him on his back. As noticed by the  High Court, if we examine the sketch plan then this part of the  evidence of PWs.1 and 2 does not find support from  prosecution’s own case because the direction in which the  deceased and PWs.1 and 2 were walking, was opposite to the  place where the hospital was situated (as could be seen from the  sketch) and if deceased turned around and started running back,  it should be towards the hospital, if so from the sketch we find  that the body of the deceased was lying not in the direction of  the hospital but in the direction of a shop belonging to one  Gopal Pandit in the Thara which is in the opposite direction.  Therefore, there is serious discrepancy also in regard to the  manner in which the incident took place atleast as evident from  the sketch plan produced by the prosecution and as spoken to  by the two witnesses. In this context, the High Court took into  consideration the defence put forward by the accused persons  who had stated that after the incident in which Surendra Singh  was injured, the members of the group belonging to said

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Surendra Singh which included the deceased, came to the  Chowk Bazar and wanted to attack the supporters of the group  of the accused persons who were in the shop of one Om  Prakash Satyanarain which was situated near the bus-stand and  said Om Prakash and others who were in the shop, noticing the  likely attack from this group, downed the shutters of the shop  but the same did not close completely hence, one of the  members of the group supporting Surendra Singh by name Safi  Mohd. fired with a 12 bore gun which inadvertently hit the  deceased who was then peeping between the gaps in the shutter  into the shop, and because of that injury the deceased fell down  dead on the Thara of the said shop of Om Prakash. Since there  is sufficient material to show that the body of the deceased in  this case was found lying on the Thara of the shop of said Om  Prakash, said defence taken by the accused persons finds some  support. At this juncture, we may also consider the material  relied upon by the High Court that there was a parallel  investigation in regard to the said attack in the shop of Om  Prakash and in the said investigation, the investigating agency  had recorded certain statements which clearly showed the  possibility of the deceased having died in such an attack. This  was admitted by PW-7, the I.O. who had noted in the case-diary  of that case as follows :

       "These points were indicated and included  in the file that the dead body was taken to the  hospital himself and declared dead by the M.O."

       This entry in the case-diary shows that it is the I.O. who  took the dead-body of Mahavir, the deceased, in this case to the  hospital from the place of incident, and not PWs.1 and 2. This  factor also supports the defence theory. That apart, as noticed  by the High Court a Gandasa was found opposite to the shop of  said Om Prakash by the investigating agency and it is not the  case of the prosecution in this case that these accused carried  any Gandasa, while defence had suggested that the assailants  went to the shop of Om Prakash carrying Gandasa apart from a  gun. Though the trial court has noticed some of the aspects of  the defence case, in our opinion, it did not appreciate it properly  and brushed aside this defence rather lightly which the High  Court has considered in detail and for good reasons has placed  reliance on the same. Bearing in mind these facts of the  prosecution’s case and the suggestion of the defence that the  complaint in question was drafted after due deliberations only  in the morning of 11.6.1988 coupled with the fact that said FIR  reached the jurisdictional Magistrate at 11 a.m. on that day,  strengthens the argument of the defence that the complaint in  question had come into existence much later as stated by the  prosecution.  There is another reason why presence of PWs.1 and 2  becomes suspect on the date of incident in the village Tibi or at  least it indicates that these witnesses are not stating the true  facts. From the evidence of PW-7, the I.O. it is seen that when  he came to know of the injuries suffered by Surendra Singh, he  went to the hospital at about 9 p.m. and recorded his statement;  whereas PWs.1 and 2 state that when they went to the hospital  at 9 p.m. they did not see the I.O. there and injured Surendra  Singh was in an unconscious state, therefore, either the I.O.  who stated that he recorded the statement at 9 p.m. or the  statement of PWs.1 and 2 that they went to the hospital at 9  p.m. is false. Either way, the prosecution has to suffer the  consequence of such contradiction.         The High Court has also relied upon the evidence of PW- 8, the ballistic expert, from whose evidence it is clear that it is  not possible to establish whether the fire-arm used in the attack

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as alleged by the prosecution was the same as was sent to him  for his examination. This is because of the fact that the  investigating agency has not recovered any empties of the  cartridges used in killing the deceased. The ballistic expert’s  evidence  in this regard only shows that the injury suffered by  the deceased could have been caused from a 12 bore gun of  similar nature.

       From the above discussion, we are satisfied that the  judgment of the High Court is unexceptional, therefore, it does  not call for any interference. Accordingly, the appeal is  dismissed.

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