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PETITIONER: THE STATE OF RAJASTHAN

       Vs.

RESPONDENT: MOJOR SINGH AND OTHERS

DATE OF JUDGMENT:       17/02/1999

BENCH: G B Pattanaik, M BmShah

JUDGMENT:

Shah. J.

       In Sessions  Case  No.    63  of 1982 decided on 3rd Sept., 1983, the Additional Sessions Judge,  Hanumangarh  in all  convicted the seven accused, namely, Major Singh, Modan Singh, Darshan Singh, Mithu Singh, Atma Singh, Balwant Singh and Ukar Singh for the offences  punishable  under  Sections 302,  148, 149, 307 I.P.C. However, he acquitted Sadhu Singh and Gurdayal Singh for the  offences  for  which  they  were charged.  Convicted  accused  were sentenced to undergo R.I. for life and fine as  stated  in  the  Order.  Against  that order,  the convicted accused preferred Criminal Appeal Nos. 345/83 and 346/83. The Division Bench of the High  Court  of Judicature  for  Rajasthan  at  Jodhpur  acquitted  all  the accused by Judgment and Order dated 21st July, 1989. Against that order, the State has preferred this appeal  by  special leave.

       Learned Counsel for the Appellant submitted that the Judgment and Order passed by the High Court is based on mere conjectures without appreciating  the  evidence  of  injured witness and  other  eye-witness  in  proper perspective.  He submitted that the reasons given are totally  erroneous  and extraneous to  the matter.  As against this, learned Counsel appearing on behalf of the accused submitted that the  order passed  by  the  High  Court is justified and High Court has rightly not relied upon the evidence of P.W.1,  injured  eye witness and P.W.2.

       For  appreciating  the said contentions, it would be just and necessary to narrate  a  few  facts.    It  is  the prosecution  version  that  on  3rd July, 1982 at about 8.30 p.m., Bakshish singh (Jat Sikh) resident of Chak  Dhola  had gone to the mohalla of Harijans to find out labour.  At that time,  informant  his  son, Baljeet Singh was taking bath at his residence and he heard  the  noise  of  ’Marta’  ’Marta’ coming from  near  the house of Mal Singh.  Hearing the said noise, his mother Basant Kaur  and  Jeeto  alias  Jeet  Kaur p.w.1  who  were  standing outside the house ran towards the scene of offence.  After putting on clothes, he too went out of the house and he saw that in the lane near the  house  of Mal Singh, Modan  Singh  (accused  no.    1).  darshan Singh (accused no.  3), Major Singh (accused no.  5),  Atma  singh (accused no.  6), Balwant Singh (accused no.  8), Ukar Singh (accused  no.9)  who were having gandasi were assaulting his

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father (deceased Bakshish Singh) and to his mother (deceased Basant Kaur).  Mithu Singh (accused No.4) armed  with  sword was also  present.  His sister was crying it is his say that Sadhu Singh (accused no.2) who was armed with  the  gun  and Gurdayal singh  (accused  no.  7) who was armed with Gandasi were also standing and telling that no one should be  spared today.   When  he  reached near his father and mother, Sadhu Singh fired from his gun but the fire did not hit him.    At that time also accused were assaulting his mother and father who fell  down  on  the  earth.  He saw also his sister Jeet Kaur lying nearby in injured condition.    Looking  to  him, other accused chased to kill him but he ran away and reached at  the  house of Mithu Singh alias Sukhdev Singh and stated the story to Mithu Singh.   Thereafter,  both  went  at  the house  of  Kaka  singh  and narrated the story to Kaka Singh upon which all of them reached at the  place  of  occurrence and challenged the accused persons upon which they ran away. He  said  that  his  parents  breathed  their last when they reached at the scene of occurrence.  His sister was lying in an injured condition.  F.I.R.  was lodged and  investigation started.   After  completing the investigation, accused were charged  for  the  offences  under  Section  302  read  with Sections  148,  149,  307  and Section 307 read with Section 149, I.P.C.     For   proving   the   prosecution   version, prosecution examined  injured  Jeet  Kaur,  p.w.  1, Baljeet Singh P.W.2 and  Sukhdev  Singh  P.W.3.    Prosecution  also examined Dr.   Kailash P.W.4 and Dr.  Sri Nath P.W.5 for the injuries sufferred by P.W.1 Jeet Kaur.  P.W.5 Dr.  Sri  Nath had  also  carried  out  post-morterm  examination  of  Mrs. Basant Kaur and had found  five  injuries  caused  by  sharp edged weapon  and  five injuries caused by blunt weapon.  He also carried out post-morterm examination of the  dead  body of  Bakshish  Singh and found eight injuries caused by sharp edged weapon and seven injuries caused by blunt weapon.  The Additional Seassions Judge, after considering  the  evidence against  the  accused Sadhu Singh and Gurdayal Singh arrived at the conclusion  that  prosecution  had  failed  to  prove beyond  reasonable  doubt that they were members of unlawful assembly or that they had provoked other accused persons  in performance of common object of murder of Bakshish Singh and Basant Kaur  or  for  inflicting injuries to Jeet Kaur.  He, therefore, accquited the said accused for  the  offence  for which they  were charged.  With regard to the other accused, the learned Judge arrived at the conclusion that  there  was no  reason  to disbelieve injured withness Jeet Kaur and the evidence of her brother Baljeet Singh and Sukhdev Singh  who arrived at  the scene of offence within a short time.  After appreciating the evidence in detail  and  dealing  with  the contentions  raised  by  the  Counsel  for  the accused, the learned Sessions  Judge  convicted  the  accused  as  stated above.   In  appeal,  the  aforesaid  findings  given by the Additional Sessions Judge are reversed by the High Court.

       The  learned  Counsel for the appellant has taken us through the evidence of injured  witness  P.W.1  Jeet  Kaur, P.W.2  Balajeet  Singh, P.W.3 Sukhdev Singh and the evidence of doctors.  In our view there was no reason  to  disbelieve the  evidence  of  P.W.1 Jeet Kaur who received as many as 9 grevious injuries at  the  time  of  the  incident  and  the injuries were  serious  as deposed by the doctor P.W.5.  Her evidence is natural and according to her, after hearing  the cries from her father, she along with her mother went at the scence  of  offence which was at a short distance from their house.  As noted  in  cross  examination  of  P.W.1,  it  is roughly 70-100  feet.    After  reaching  at  the  seene  of

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offence, she was that her father was being assaulted by  the accused.   She  and  her  mother intervened to save Bakshish Singh, deceased.  At that time, accused Major Singh  gave  a blow  on  the  head of her mother with a sharp edged side of gandasa and  other  accused  also  caused  injuries  to  her mother.   At that time her brother Balajeet Singh came there rushing but Sadhu Singh and Gurdayal Singh  had  warned  him not to  go  ahead otherwise they will kill him.  This threat did not deter Baljeet Singh from coming near.   Hence,  when he  was  at the short distance, Sadhu Singh fired at Baljeet Singh from his rifle but it did  not  hit  him  and  Baljeet Singh ran  away.    Same is the version of Baljeet Singh who reached at the seene of  offence  after  some  time  becuase according  to  him,  at  the  relevant  time,  he was in the bathroom.  It is further say of P.W.2 Baljeet Singh that  he had also seen accused assaulting her parents and sister.  He tried  to  intervene but Sadhu Singh and Gurdayal Singh told him  not  to  go  there,  otherwise  they  would  kill  him. Subsequently,  when  he  was  proceeding  ahead, sadhu Singh fired from his rifle so he ran away.  Some  of  the  accused chased him  for  15 spaces but could not catch him.  He went at the house of Mithu Singh alias Sukhdev Singh and narrated the story.  Both of them went at the house of Kaka Singh and after narrating the incident, all of them went at the  scene of offence  and  challenged  the  accused.   The accused ran away.  In our view, considering the medical  evidence  which corroborates  the  prosecution version, particularly, of the injured withness P.W.1 Jeet Kaur,  there  is  no  reason  to disbelieve  the  evidence  of  the  aforesaid two witnesses. This evidence is  corroborated  by  the  evidence  given  by Sukhdev Sing.  However, High Court arrived at the conclusion that   the  evidence  of  the  aforesaid  witnesses  is  not reliable.  It appears that the High Court started totally on a wrong premises by holding that on exhortion of Sadhu Singh and Gurdayal Singh, the appellant accused are said  to  have chased  Baljeet  Singh  from some distance and when he could not be caught hold of all of them are said to have assaulted Bakshish Singh and Smt.  Basant Kaur while Sadhu  Singh  and Gurdayal Singh  kept on giving lalkaras.  This finding given by the High Court is without  considering  the  evidence  of P.W.1 Jeet  Kaur  and  P.W.2  Baljeet Singh.  It is a say of Jeet Kaur that she and her mother were in the  courtyard  of their  house  and  they  heard their father crying "they are killing me" (Marta’ ’Marta’) near the house of Mal Singh  in the street.    They  rushed  outside  and  saw  that accused carrying gandasa except  Mithu  Singh  who  was  armed  with Kirpan were  assaulting  the  deceased  Bakshish Singh.  The other accused Sadhu Singh was armed with ritle and  Gurdayal singh with  gandasa.  Both of them were standing in front of the house of Sadhu Singh and giving ’lalkara’ "We have  been able  to  pin down the enemy, today don’t let him go." It is her further say that when she and her  mother  attempted  to rescue  her  father,  Major Singh gave a blow on the head of her mother with a sharp edge side of gandasa and Atma  Singh gave  a  blow with a sharp edge side of gandasa to her which caused injury to her.  She has also stated that rest of  the assailants were  assaulting her partents.  At that time, her brother Balijeet Singh came rushing but Gurdayal  Singh  and Sadhu  Singh  had warned him not to go ahead other wise they would kill him.  As Baljeet Singh proceeded  further,  Sadhu Singh  fired at Baljeet Singh and at that time Baljeet Singh ran away.  Similar is the evidence of  Baljeet  Singh,  p.w. 2.   Without considering this part of the evidence, the High Court considered the later  statement  wherein  the  witness Jeet Kaur had stated that after Sadhu Singh fired at Baljeet

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Singh  and  when  Balfeet  Singh  ran  away, Sadhu Singh and Gurdayal Singh shouted that son has run away  go  and  catch him, he  should  be  killed.   At this stage, assailants ran after  Baljeet  Singh  but  they  could   not   catch   him. Thereafter,  again  the  assailants  started  assaulting her parents.  After a while, her brother came with Sukhdev Singh and  they  challenged  the  assailants  at   the   juncture, assailants ran away.  Subsequent part of the evidence of the witness  Baljeet  Singh  and  Jeet  Kaur  is corroborated by evidence of p.w.3 Sukhdev Singh.  Sukhdev Singh  has  stated that  Baljeet  Singh  informed  him that his parents and his sister Jeet Kaur were assaulted by the accused and as  Sadhu Singh  had  fired at him he escaped and rushed at his house. Thereafter, along with Baljeet Singh, he want to  the  house of Kaka  Singh  and informed him about the incident.  Hence, he, Baljeet Singh and  Kaka  Singh  went  at  the  place  of occurrence  immediately  and  found  that  Sadhu  Singh  and Gurdayal Singh were raising ’lalkara’.  And at  that  place, they  saw  the  accused  with  their  weapons assaulting the deceased Bakshish Singh and Basant  Kaur  and  injured  Jeet Kaur.   It  is appearent that High Court has totally ignored tirst part of the evidence given by Jeet Kaur that  she  and her mother reached first at the scene of offence and at that time, they  saw  accused  assaulting  her  father.   As they intervened,  accused  assaulted  her  and  her  mother   and intlicted injuries.  The High Court has further not accepted the evidence of  P.W.   1 and P.W.  2 by observing that some of the accused were Mazabi Sikhs  by  caste  and  there  was apparently  nothing to connect them with accused Sadhu Singh and Gurdayal Singh or for that matter with Kulwant Singh and Ukar Singh and that they were not  having  any  relationship with the  accused.    In  our  view,  this  consideration is totally irrelevant and extraneous.   The  Court  also  dealt with the aspect that prosecution has failed to prove how the incident started.    In  our view, in the facts of the case, this consideration was not relevant because there is nothing on record  to  suggest  that  the  deceased  Bakshish  Singh started  the  attack  or assaulted any one of the accused as according to prosecution evidence all the accused were armed with deadly weapons.  In the present  case  the  prosecution evidence  began  with P.W.1, who after hearing shouts of her father reached at the scene of offence along with her mother and saw that accused were assaulting her father.  It  is  to be  noted  that  P.W.2 Baljeet Singh has specifically stated that there was previous enmity between the parties as  Onkar Singh  and  Kulwant  Singh  had picked up a quarrel with his father and had assaulted his father before a  year  and  for that incident,  a case was pending.  Hence accused wanted to wipe off their family.  The High  Court  has  further  taken into  consideration  that  prosecution  witnesses  have  not stated exactly whether the accused inflicted injuries  by  a sharp  or  blunt  side of the weapon and therefore they have not explained how the deceased as well  as  injured  witness got incised  injuries  as  well contusions.  In our view, in holding that prosecution witnesses have not  exactly  stated whether  the accused inflicted injury by sharp or bulnt side of the weapon, the High Court has  ignored  the  reality  of such accurrences.    It  would be practically impossible for any injured witness to  exactly  notice  and  memorise  that which accused was assaulting by blunt side of the weapon and shich  accused  was  causing injuries by sharp edged weapon. Even if  such  statement  is  made,  it  may  amount  to  an exaggeration  because  when  number of assailants are there, injuries are not  inflicted  in  a  manner  which  could  be exactly  noted  by  the  witness. If one or two injuries are

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caused and if it is broad daylight,  it  is  quite  possible that  some witnesses may be in a position to note it. But at about 8.30 p.m., when  the  witness  herself  was  receiving injuries,  it  would  not  be  possible  to note and narrate whether the accused were causing injuries to her parents  by the  blunt  or  sharp  side  of the weapon. The other reason which is given by the High Court  is  that  injured  witness Jeet  Kaur  has  not  stated  a  single specific injury on a person which could be attributed to Ukar  Singh  or  Kulwant Singh  except  by  vaguely  stating  that they assaulted her parents and  had  also  given  gandasa  blows  to  her  and, therefore,  it  creates  a  good deal of suspicion regarding participation of the Ukar Singh and  Kulwant  Singh  in  the incident.  Here  also  High Court ignored the fact that once the  presence  of  the  Ukar  Singh  or  Kulwant  Singh   is established at the scence of offence and their participation is alleged, there was no reason to doubt the evidence of the witness.

       Hence,  the  appreciation  of  the  evidence of this injured witness and p.w.2 Baljeet Singh by the High Court is totally erroneous ingoring the  ground  realities  and  fact situation  which  has resulted in miscarriage of justice. In our view, the Sessions Judge  has  rightly  appreciated  the evidence  of  p.w.  1,  2, & 3 in arriving at the conclusion that the prosecution has proved beyond reasonable doubt that accused assaulted deceased Bakshish singh and  Bassant  Kaur and  also inflicted injuries to the witness Jeet Kaur. There is no reason to doubt the presence of the injured witness at the scene of occurrence. Her presence is established  beyond doubt.  Similarly with regard to the evidence of P.W. 2 also it is but natural for the son of the deceased to rush at the scence of offence after hearing the shouts  of  his  father. The  distance  between the scene of offence and the house of the witnesses is hardly 70 to 100 ft.  The  assailants  were known  to  the  witnesses.  The  evidence  of  P.Ws 1 & 2 is corroborated by P.W 3 who rushed at  the  scene  of  offence after getting information from P.W.2.  Medical evidence also corroborates the say of P.W.1. In our view, therefore, there is  no  reason  to  disbelieve the evidence of the aforesaid three witnesses, i.e., P.W. 1, 2, &  3  and  the  Additional Sessions  Judge  has  rightly  convicted the accused for the offence for which they were charged.

       In the result, appeals  are  allowed,  Judgment  and Order  dated  21.7.89  passed  by the High Court in Criminal Appeal No. 345/83 and 346/83 is  set  aside  and  the  Order passed  by  the  Additional  Sessions  Judge, Hanumangarh in Sessions Case No. 63 of 82 is  restored.  Bail  bonds  stand cancelled. Accused are directed to surrender.