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PETITIONER: VIJAI SINGH AND OTHERS

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT:       13/03/1996

BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) HANSARIA B.L. (J)

CITATION:  JT 1996 (3)   299        1996 SCALE  (2)683

ACT:

HEADNOTE:

JUDGMENT:            (With Criminal Appeal No.605 of 1988)                       J U D G M E N T G.N.Ray, J.      12  accused  including  the  appellants  in  these  two appeals stood  charged under  Section 302  read with Section 149. 148.201  and 447  of Indian  Penal Code and the accused Nos.1 and  2, namely  Ram Pratap  and Het  Ram, were further charged for  offence under  Section 27  of the  Arms Act, in Sessions Case  No.11 of  1985 in  the Court  of the  learned Additional Sessions  Judge, Nohar.  By judgment  dated March 31, 1986. Ram Pratap was convicted under Section 302 and was awarded a  capital sentence  for the  said offence. The said Ram Pratap  and accused  No.2 Het Ram were further convicted under Section  27 of  the Arms  Act and  were  sentenced  to suffer rigorous imprisonment for three years together with a fine of  Rs.500/-. In default further imprisonment for three months. All  the accused  were also  convicted under Section 148, 201  and 447  IPC and  they were  sentenced  to  suffer rigorous imprisonment  for two years and a fine of Rs.500/-, in  default   of  payment   of  fine   to  undergo  rigorous imprisonment for  three months for the offence under Section 148  IPC,   and  they  were  sentenced  to  suffer  rigorous imprisonment for  three years  and a  fine of  Rs.500/-,  in default of  the payment  of fine  to  undergo  three  months rigorous imprisonment for the offence under Section 447 IPC. Accused Nos.2  to 12  were also  convicted under Section 302 read with  Section 149 IPC and each of them was sentenced to suffer life  imprisonment and a fine of Rs.500/-, in default three months  rigors imprisonment.  Against such convictions and sentences,  Ram Pratap Singh, accused No.1, preferred an appeal being  D.B.Cral.(Jail) Appeal No.52 of 1986 and other convicted accused preferred D.B.Crl.Appeal No.67 of 1988 and Onkar  Singh   preferred  D.B.Crl.Appeal   No.68  of   1986. D.B.Crl.Murder Reference  No.1 of  1986  also  came  up  for confirmation of the death sentence passed against Ram Pratap before the  High  Court  (Jaipur  Bench).  The  said  Murder

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Reference and  the Criminal  appeals were  heard analogously and were  disposed of  by a  common judgment dated April 22, 1987. By  the aforesaid  judgment, Murder  Reference No.1 of 1986 and  D.B.Crl.Appeal No.52  of 1986  were disposed of by commuting  the  death  sentence  to  the  sentence  of  life imprisonment  so   far  as   accused  No.1  Ram  Pratap  was concerned. The  High  Court  acquitted  accused  No.9  Onkar Singh, accused  No.10 Smt.Nikki,  accused No.11 Smt.Sumitra, accused No.12  Smt.  Harla,  but  conviction  and  sentences passed against accused Nos.2 to 8 were confirmed by the High Court. Against  the said  judgment  of  the  Rajasthan  High Court, accused  Nos.4, 5, 6, 7 & 8 have preferred Crl.Appeal No.604 of  1988 before  this Court  and accused No.2 Het Ram has preferred  Crl.Appeal No.605  of  1988.  Both  the  said appeals have  been heard  analogously and are being disposed of by this Judgment.      On the  basis of  an F.I.R.  lodged by  P.W.1  Rajender Kumar, the  son of  the deceased Bhagaram on May 24, 1985 at about 5.00  p.m. in  Police Station.  Nonar in  the District Ganganagar,  the  said  Sessions  Case  No.11  of  1985  was initiated before  the  learned  Additional  Sessions  Judge. Nonar.      The short  facts of  the prosecution  are that deceased Bhagaram had  killed the father of Ram Pratap about 20 years back. Ever  since such murder, there was annuity between the family of Ram Pratap and the family of deceased Bhagaram. On May 24,  1982, at about 8.00 or 9.00 a.m.. the said Bhagaram and the  daughter of  the deceased  Hari Singh  namely Guddi P.W.2 brought food for the members of the family of Bhagaram who had  come to their agricultural field for harvesting and were working  there. The  adjoining field  belonged  to  Ram Pratap and  Het Ram.  At about 11.00 or 11.30 a.m.. the said Ram Pratap  and Het  Ram came  to the field of Bhagaram each one armed with a gun and they shouted that they would settle the dispute  on that  day. Thereafter, Ram Pratap fired from his gun  on Bhagaram  and Het Ram fired from his gun on Hari Singh, brother of Bhagaram, and both Bhagaram and Hari Singh fell on  the ground  being injured  by the gun shot. Balram. Vijai Singh,  Banwari, Rai  Singh being armed with kasia and Raghuveer, Devi  Lal, Nikki,  Harla being  armed with lathis also came  there shouting  to kill  the deceased  and  other members of  their family  who were  present there. Inder Raj and Hans  Raj, brothers of Rajender, seeing the said accused started running  but they  were apprehended  and with kasias and lathis both Inder Raj and Hand Raj were done to death at the spot.  After killing  the said  two persons, the accused went to  the thrashing  ground where Bhagaram and Hari Singh were lying critically injured. Smt.Dhapi, mother of Bhagaram and Hari  Singh, reguested  the accused not to kill them but the accused  did not  pay any  need to such request and both Bhagaram and Hari Singh were further assaulted by Balram and the wife  of Balram  with khasia  and they died immediately. Thereafter, the  dead bodies  of all  the said four deceased were picked  up by  the accused and they were brought to the thrashing ground of the accused and the said bodies were but on the  firm waste  (guna) and  the said guna was thereafter lignite, Smt.Dhabi  followed the  accused in their field. At that time,  accused No.1  Ram Pratap caught hold of the said Dhabi and  threw ner in the fire. Rajender P.W.1 hid himself in a  nearby field  at a  little distance  and  noticed  the incident of  killing. He  thereafter rode on the camel which was kept  tied near  their field and started running towards the village.  Accused Ram Pratap and Het Ram seeing Rajender fleeing away  and fired four shots from their guns aiming at Rajender but  they missed  the target  and Rajender  was not

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hit. He  reached his  house and  out of  fear  kept  himself concealed for  some time.  His sister  P.W.2 Guddi  who  was present in  the kotha  (rdom) in  the thrashing  yard at the time of  occurrence and had noticed the incident also ran to their house  and then  the incidents  were narrated  to  the mother and  the aunt of Rajender. Thereafter, he went to the Police Station  which was  about 20 kilometers away from his village and lodged the said F.I.R. at about 5.00 p.m. In the F.I.R., the  names of  all the accused excepting Onkar Singh were mentioned.      The  depositions   of  the  two  eye  witnesses  namely Rajender P.W.1  and Guddi  P.M.2 were  held reliable  by the learned Additional  Sessions Judge and he convicted the said accused and  passed the  sentences against  them as  already indicated. The High Court, however, gave benefit of doubt to Onkar Singh,  accused  No.9  and  the  three  ladies  namely accused No.10 Nikki, accused No.11 Sumitra and accused No.12 Harla and  acquitted the  said accused.  As  aforesaid,  the conviction and  sentences passed  against  all  the  accused excepting accused  No.1 Ram Pratap were affirmed by the High Court. So  far as the accused No.1 Ram Pratap was concerned, the High  Court commuted  the death sentence to the sentence of life  imprisonment for  the offence  of  murder  but  the conviction and  sentence  passed  for  other  offences  were maintained.      Mr.S.K.Jain, learned  Senior Counsel  appearing for the appellants,  has   very  strenuously   contended  that   the prosecution case  should not  be accepted  because such case had not  been proved  beyond reasonable  doubt. Mr.Jain  has submitted that  if there  was  a  strong  motive  of  taking revenge against  Bhagaram and  Hari Singh and the members of their family  by Ram  Pratap, Het  Ram and  others for which they came  prepared with  two guns  and other  weapons, they would not  have allowed  Guddi P.W.2  and Rajender  P.W.1 to escape and  depose against  them in  a murder   case of such magnitude. Mr.Jain  has also  submitted that the story as to how Rajender  had escaped by riding on a camel’s back is not at all  leviable and  should be  discarded. He has submitted that according  to Rajender.  P.W.1. when  he  rode  on  the camel’s beck  and started  to flee  away from  the place  of occurence, four  shots were  fired by  the two  guns by  Ram Pratap and  Het Ram.  It was  highly unlikely  that  neither Rajender nor  the camel   would receive any injury from such gun shots  which had  been fired  from  a  reasonable  close range. He  has also  submitted that  Guddi P.W.2  was then a small cnilo  of about  13 to  14 years and it was quite easy for the accused to apprehend Guddi and to finish her so that there would  be no  occasion for evidence by an eye witness. The case of the prosecution that Guddi was allowed to escape and to  return to  her village,  therefore, does not inspire any confidence  and should  not have  been accepted  by  the courts below.      Mr.Jain has  also submitted  that  according  to  P.W.1 Rajender, while  he was returning to his village, he had met one Krishna  Kumar and  on anquiry  by him had told him that the father  and uncle had been murdered but the said Krishna Kumar had  not been  examined by the prosecution in order to lend credence to the deposition of Rajender that when he had been returning  weeping, on being asked by Krishna Kumar, he told about  the said  incident shortly  after the  incident. Mr.Jain has  also submitted  that there was a police outpost within 1 to 2 kilometers from the village of Rajender and it was expected  that Rajender  should immediately  go  to  the police outpost  and report  the said  incident.  Instead  of doing so,  he had  gone to  Nohar Police  Station which  was

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about 20  kilometers away  from the  village, to  lodge  the F.I.R. Mr.Jain  has also  contended that if the incident had taken place at 11.00 or 11.30 a.m.. it was highly improbable that Rajender  would first  come to  his village  which  was about three  miles from  the place  of occurrence  and after spending some time in his house, he would cover the distance of 20  kilometeres on foot and would lodge the F.I.R. at the Nohar Police Station by 5.00 p.m.      Mr.Jain has  also submitted that it has come out in the deposition of Rajender that when Guddi has reached the house weeding, Rajender  had enquired  of Guddi  as to way she was weeping and  then Guddi told the mother and aunt of Rajender about the  said tragic  incident. Mr.Jain has submitted that if Rajender  had reached home earlier by riding on the camel and had  stated about  the incident  to his mother and aunt, there would  not have been any occasion for him to ask Guddi as to  what had  happened. Such  fact  only  indicates  that Rajender was  not present  at the place of occurrence but he had heard  only from  Guddi and on that basis, he logged the F.I.R.   in   the   police   station.   In   the   aforesaid circumstances. Rajender should not be accepted to be the eye witness and  the prosecution  case therefore  hinges on  the evidence of the sole eye witness namely P.W.2 Guddi. Mr.Jain has submitted  that P.W.2  Guddi was  a minor at the time of incident and  her presence was also doubtful for the reasons already indicated.  She had  not been able to name the other accused and  in her  statement before the police and also in her deposition only the names of Ram Pratap and Het Ram were mentioned.      Mr.Jain has  also submitted  that in  the instant case, the prosecution  had alleged about strong enmity between the families of  the deceased  and the  accused  because  of  an incident of  murder 20  murder 20 years back by the deceased Bhagaram.  In   such  circumstances,  the  chance  of  false implication of the innocent family members of Ram Pratap and Het Ram  should not be underestimated. Mr.Jain has submitted that as  a matter  of fact, Onkar Singh was not named in the F.I.R. but  later on  he was falsely implicated. Three women members of  the family  of the  accused were  sought  to  be implicated. The  High Court  therefore did  not  accept  the prosecution  case  against  Onkar  Singh  and  also  against accused Nos.10.  11 and 12 Nikki, Sumitra and Harla and they were acquitted  by the  High Court by giving them benefit of doubt. If  the case  of  strong  annuity  between  both  the families and  false accusations  against some of the accused in order  to road  them in  the said  incident of murder are considered in the light of the other should be no difficulty in discarding  the prosecution case as a whole. Mr.Jain has, therefore, submitted  that the  appeals should be allowed by setting aside the conviction and sentence passed against the appellants.      Mr.Bhati,  the   learned  counsel   appearing  for  the respondent State  of Rajasthan,  has, however,  disputed the contention made  by Mr.Jain.  He has submitted that there is no difficulty  in fixing  the place of incident and also the time of occurence. He has also submitted that the deposition of Rajender  Kumar that  he could  escade by  riding on  the camel’s back  cannot be  discarded because  neither Rajender nor the camel sustained injuries from the gun snots aimed at Rajender.  Mr.Bhati   has  submitted  that  the  police  had recovered four  spent up  cartridges from  the field  of the accused from  where the  accused No.1  and accused  No.2 Ram Pratap and  Het Ram  had fired  four shots towards Rajender. Mr.Bhati has  submitted that  Rajender had undergone a great mental shock and traumatic experience by witnessing the said

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ghastly incident  where four  of the family members were not only brutally  killed but  their bodies  were disposed of by putting them  on fire.  In such  circumstances, it  is quite likely that  he had  failed to  mention the  name  of  Onkar Singh.  Mr.Bhati  has  also  submitted  that  such  omission clearly indicates  that there  was  no  attempt  to  falsely implicate the  members of the family of the accused. If from the very  beginning, there  was such  a calculated  attempt, there would  not have  been any  omission in  mentioning the name of Onkar Singh.      Mr.Bhati has also submitted that Rajender has stated in his  deposition  that  he  was  very  frightened  and  after reaching  his   house  he  initially  hid  himself.  Shortly thereafter. Guddi  reached and then the incident was told to the mother and aunt of Rajender. Mr.Bhati has submitted that the dispositions  of Rajender  and Guddi  de not suffer from any material  contradiction for  which the veracity of their evidences may  be reasonably  doubted. On  the contrary, the deposition of  one gets corroboration from the deposition of the other  in material  particulars. Mr.Bhati  has submitted that there is nothing unnatural in the depositions of either Rajender  or   Guddi.  Both   of  them   had  deposed  in  a straightforward manner  and they  stood the  test of  cross- examination quite  convincingly without being shaken. Hence, the  courts   below  had  no  difficulty  in  accepting  the prosecution case. Mr.Bhati has submitted that the High Court has not  held that  the prosecution  case was  false and the depositions  of   the  eye  witnesses  were  not  worthy  of credence. Since the name of Onkar Singh was not mentioned in the F.I.R.  and as  the High  Court was of the view that the acquitted women  members though  present  at  the  place  of occurence,  might   not  have  participated  in  the  actual commission of  offences, gave  benefit of  doubt to  accused Nos.9. 10.  11 and  12. But the prosecution case against the rest of  the accused  has been  accepted by  the High  Court without any  hesitation. Mr.Bhati  has submitted that in the instant case,  the F.I.R.  has been  lodged at  the earliest possible time  by Rajender.  The evidence  of Rajender  gets corroboration from  the evidence  of  Guddi  the  other  eye witness and  also from  the associated facts namely recovery of  doesn’t   up  cartridges,  charred  skeletons  of  three deceased and  also the recovery of the dead body of Dhaoi at the instance  of  one  of  the  accused.  In  view  of  such clinching evidences,  the order of convictions and sentences have  been   passed  against   the  appellants.   Hence,  no interference is  called for  in these  appeals and  the same should be dismissed.      After giving our anxious consideration to the facts and circumstances  of  the  case  and  the  depositions  adduced through which  we have been taken, it appears to us that the eye witness  account of  Rajender P.W.1  and of  Guddi P.W.2 should not  be discarded.  It is  the specific  case of  the prosecution that  attempt on  the life  of Rajender was also made by firing four shots but luckily he could escape unhurt from the  place of  occurrence. Such  attempt by firing four shots gets  corroboration from  the  recovery  of  spent  up cartridges from  the place  from where the shots were stated to have  been fired  by Ram  Pratap and  Het  Ram.  Rajender lodged the  F.I.R. by 5.00 p.m. after covering a distance of about 20  kilometers from his village. When the incident had taken place at 11.00 or 11.30 a.m.. such filing of F.I.R. by 5.00 p.m. must be held to have been lodged very promptly. In the F.I.R.,  the incident was described in detial and firing of four  shots at  Rajender was also specifically mentioned. Such factum  of  firing  four  shots  could  not  have  been

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mentioned if  Rajender had not witnessed the incident. We do not think  that the  prosecution case  is to  be disbelieved only because  Krishna Kumar  was not  examined. Law does not receive corroboration of the evidence like that of Rajender. He has  stated that  after reaching nome, he had hid himself for some  time out  of fear.  It also  transpires  from  his deposition and  also the  deposition of  Guddi that  shortly after his  return, Guddi  also  reached  the  house,  Hence, reporting of  the  incident  by  Guddi  on  being  asked  by Rajender cannot  be taken  to indicate that Rajender had not seen the  occurrence. He  was trying to know from Guddi whom she had seen. We have considered the depositions of Rajender and Guddi.  But we  have failed  to notice  any infirmity or contradiction  in   material  particular   for  which  their depositions  are  to  be  discarded.  Mr.Bhati  has  rightly indicated that  other facts and circumstances established on cogent evidence  only  corporate  the  prosecution  case  of murder of  the said  four persons  and setting the bodies in fire.      No interference  is, therefore,  called  for  in  these appeals and the same are dismissed.