Kuldeep Singh Vs. State of Rajasthan - Court Judgment

Excerpt:
- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - 4) along with one more person at their well in the field before they proceeded for their house in the village late in the evening of the day of the fair in the village. 8 sunder singh came with him from his well at about 8.30 in the evening after visiting the fair.guman singh, j.1. in this appeal the appellant has challenged the judgment dated 23.7.2003 passed by learned additional district and sessions judge (fast track), behror (alwar), in sessions case no. 76/2002 state v. kuldeep singh, whereby he was convicted and sentenced as under:under section 302/34 ipcto suffer imprisonment for life and fine of rs. 1000/- in default to further suffer simple imprisonment for three months.under section 323/34 ipcto suffer rigorous imprisonment for six months and fine of rs. 200/- in default to further suffer simple imprisonment for one month.both the sentence were ordered to run concurrently.2. it is the prosecution case that injured mahendra singh s/o ram singh, r/o tasingh, reached to the police station behror at 8.40 a.m. on 29.3.2001 and submitted a written report (ex. p.6), to the effect that is brother vishal singh, who resided at village tonkani had come to see fair. their brother's son had constructed a wall and fixed gate in the common space meant for passage. on being objected to it, kuldeep singh and ghanshyam singh alias pradeep singh, inflicted injuries upon them with an iron rod and an axe and as the condition of vishal singh was serious, he was first admitted in the hospital at behror and then the report was lodged. on receipt of the report, a case under sections 323, 341, 34 ipc was registered and formal first information report ex. p. 7 was chalked, showing intervening night of 28th and 29th march 2001, as the date of incident. on being inquired, the informant further disclosed that the doctors at behror referred injured vishal singh to alwar and, therefore, vishal singh was taken to alwar at 4 a.m. before the report could be lodged.3. on this report, the investigation commenced and the injured vishal singh succumbed to the injuries at s.m.s. hospital, jaipur, on 8.4.2001 at 5 a.m. after usual investigation, charge sheet was filed under sections 302, 323/34 ipc. the absconding co-accused ghanshyam singh alias pradeep singh was requested to be proceeded under section 299 cr.p.c. in due course, the case came up for trial before the additional sessions judge (fast- track) behror, alwar. charges under sections 302/323 read with section 34 ipc were framed against the accused kuldeep singh, who denied the charges and claimed trial.4. the prosecution examined as many as sixteen witnesses. in the explanation under section 313 cr.p.c. the appellant claimed innocence and explained that in fact mahendra singh, vishal singh and sunder singh, had come to his house and assaulted him. in defence, no witness was examined. learned trial judge, on hearing final submissions convicted and sentenced the appellant as indicated herein above.5. we have heard the submissions of learned counsel for the appellant and learned public prosecutor and with their assistance scanned the material on record.6. as per the post mortem report (ex. p. 14) the following ante mortem injuries were found on the person of the deceased:(1) abrasion 1 cm x 3/4 cm with dry, dark black hard scab formed outer angle (rt. eye).(2) bruise 2 cm x 3/4 cm rt. elbow dorsum ulnar side violet greenish in colour.(3) bruise 4 cm x 1 cm (rt.) anterior flee (superior) spine region.(4) bruise (abraded) in area 4x4 cm region 4 cm below the injury no. 3.(5) bruise 19 cm x 4 cm commencing from lt. flee exterior region extending laterally and posteriorly in lumber region placed horizontally.(6) bruise 9 cm x 4 cm placed vertically over injury no. 5 in lt. lumber region posteriorly.(7) abrasion 1 cm x 3/4 cm x muscle deep (lt.) flee exterior region.(8) multiple bruise of size 4. cm x 1.5 cm to 2 cm x 1/2 cm (lt.) pelvic region over anterior superior flee spine and area below it, all horizontally placed.(9) bruise 3 cm x 1 cm (lt.) elbow dorsum.(10) bruise 6 cm x 2 cm part of neck and lt. side neck, horizontally placed.(11) bruise 6 cm x 3/4 cm lt. side neck horizontally placed (faint)in the opinion of dr. d.k. sharma (pw. 12), the cause of death was 'coma' brought about as a result of ante-mortem head injuries as mentioned sufficient to cause death in the ordinary course of nature.7. injured mahendra singh (pw. 4) vide injury report (ex. p. 8) sustained following injuries:1. abrasion 1 x half cm over right external ear.2. bruise 5 x 2 cm over left thigh middle one third and anterior aspect.3. complaint of pain in back, no external injury and no tenderness.8. on reappraisal of the prosecution evidence, it is revealed that the first information report (ex. p. 7) was lodged by mahendra singh (pw. 4) at 8.40 a.m. on the following morning of the intervening night of 28th and 29th march 2001 when the occurrence took place. since the condition of injured vishal singh was serious, he was first taken to hospital at behror and then to alwar, before the report (ex. p. 7) could be lodged at police station and the injured mahendra singh and vishal singh were already examined by the doctor at behror for their injuries at 400 a.m. on 29.3.2001, the injured vishal singh was taken to s.m.s. hospital, jaipur as his condition was serious and ultimately he succumbed to the injuries on 8.4.2001 at 5 a.m. post mortem was conducted and report (ex. p. 14) was prepared. so the offence under section 302 ipc was added and investigation was conducted accordingly.9. from the record, it is evident that on the preceding day of the fateful night of the occurrence, the deceased had come from village tonkani along with one sunder singh (pw. 8) to see gangore fair at village tasing and both of them stayed with mahendra singh (pw. 4) as the deceased himself was resident of that village but had shifted to village tonkani after his marriage and was looking after the property of his father-in-law. the wives of mahendra singh (pw. 4) and deceased vishal singh were real sisters and, therefore, it was quite natural for vishal singh to stay with mahendra -singh and thus the deceased vishal singh and sunder singh stayed in the common guest room at the residence of mahendra singh. this has been corroborated by pw. 5 smt. murti devi, wife of mahendra singh and also pw. 6 laxman who deposed that deceased vishal singh was seen with mahendra singh (pw. 4) along with one more person at their well in the field before they proceeded for their house in the village late in the evening of the day of the fair in the village.10. the accused kuldeep singh is the son of real brother of mahendra singh and vishal singh, who resided in the same precincts as all the brothers had their share in the ancestral house. so the deceased had an objection on construction of wall and fixing gate in the joint space meant for common passage by the accused. the prosecution examined mainly three eye-witnesses of the occurrence namely pw. 4 mahendra singh, his wife pw. 5 smt. murti devi and pw. 8 sunder singh who had accompanied to the deceased. as per the deposition of mahendra singh (pw. 4) the deceased vishal singh and pw. 8 sunder singh came with him from his well at about 8.30 in the evening after visiting the fair. all the three took their meals in the guest room and then vishal singh deceased and sunder singh slept in the separate cots there and mahendra singh (pw. 4) went inside to take rest. at about 11 in the night, on hearing hue and cry from the guest room, mahendra singh (pw. 4) along with his wife rushed there and saw accused kuldeep singh and ghanshyam alias pradeep singh armed with iron rod and axe respectively, inflicting injuries to vishal singh. kuldeep singh, who was armed with iron rod inflicted injuries in the abdomen and neck of vishal singh, as a result of which vishal singh became unconscious and the accused ran away from three thinking that vishal singh was dead. pw. 5 smt. murti devi w/o mahendra singh (pw. 4) and pw. 8 sunder singh have corroborated the testimony of mahendra singh (pw. 4).11. the accused kuldeep singh in his statement under section 313 cr.p.c, has taken a stand that no assault as alleged was made by him and in fact mahendra singh (pw. 4) along with deceased vishal singh and sunder singh (pw. 8) had come to his house that night and assaulted him. in spite of the aforesaid stand in defence, it was put to mahendra singh (pw. 4) that the deceased vishal singh fell on the ground that night and died of the injuries sustained by him. it was also put to mahendra singh (pw. 1) that in fact vishal singh was victim of conspiracy wherein he was killed by mahendra singh (pw. 4) so as to garb the property of his father-in-law himself as their wives were real sisters and his father-in-law had no son. it appears that aforesaid conflicting stands were taken on behalf of the accused so as to escape their liability from murderous attack in the face of testimony of the eye-witnesses. in support of the explanation under section 313 cr.p.c. by the accused, f.i.r. (ex. d. 7), lodged by the accused and injury report (ex. d. 8) prepared in this regard were exhibited in the cross examination of pw. 13 satish kumar, s.h.o. on perusal of ex. d. 7 f.i.r. in cross-case, it is revealed that the same was lodged on the following day of the incident at about 4.40 p.m. long after the report (ex. p. 7) in the present case was lodged while the injury report marked ex. d. 8 in the said cross-case revealed that only two simple injuries were found on the person of the accused kuldeep singh that too of the duration of the one or two days. moreover, no witnesses named in the cross case though their names were suggested in the cross-examination of mahendra singh (pw. 4) were examined in defence to probabalize the defence version so as to dislodge the charge against him.12. while adverting to the difference in the injuries noted at behror by dr. satyaveer yadav (pw. 7) on 29.3.2001 vide ex. p. 11 before the deceased was shifted to s.m.s. hospital, jaipur and the injuries found on the body on post mortem by dr. dharmendra kumar on 8.4.2001, it may be noted that as per record, the condition of vishal singh, was serious, he was rushed to alwar and then to s.m.s. hospital, jaipur, and as such it could not be ruled out that all those injuries recorded in the post mortem report ex.p. 14 slipped the notice of the doctor at behror in view of the emergency to shift the injured for treatment. from the testimony of dr. dharmendra kumar (pw. 12), it is further clear that vishal singh died due to head injuries as described in the post mortem report ex. p. 14. on examination, it was found by dr. dharmendra sharma (pw. 12) that there was a blood clot beneath the skin on the head and brain was completely soft and crushed into paste and was protruding out of the skull and as such the injury which was not outwardly visible, could not have been noticed easily by the doctor at behror in aforesaid emergent situation. thus the ocular testimony of the eye-witnesses stand further corroborated from medical evidence on record.13. on testing the evidence of eye-witnesses namely pw. 4 mahendra singh, pw. 5 smt. murti devi and pw. 8 sunder singh, the same is found to be consistent and credit worthy and nothing infirm could be elicited to caste a doubt on their testimony and hence these witnesses have rightly been relied upon by the learned trial judge. the prosecution case is further corroborated from the fact of recovery of iron rod at the instance of the accused as deposed by pw. 13 satish kumar, s.h.o. and the same was found stained with 'a' group human blood as per f.s.l. report (ex. p. 16), which was found on the clothes of the deceased recovered vide ex. p. 5 and the quilt and the bedroll, recovered vide ex. p. 4 on being produced by mahendra singh on 11.4.2001 after the investigation of this case was converted from sections 323,341, 34 ipc to that of murder under section 302/34 ipc.14. on adverting to the question as to what offence was committed by the accused appellant, it would be noticed that the occurrence took place in the night and head injury was found to be the cause of death of the deceased and the accused appellant has been charged with offence under section 302 with the aid of section 34 ipc. thus, it is clear that the case did not fall under the first clause of section 299 but the matter falls under the third part of section 299 since there was no intention to cause the particular injury but with the knowledge that the act would likely to cause death of the victim and therefore, the accused is liable to be convicted not under section 302 ipc but under section 304 part ii ipc.15. for these reasons, we partly allow the appeal and instead of section 302/34, we convict the appellant under section 304 part ii read with 34 ipc. looking to the fact that the appellant has already undergone confinement for a period more than 6 years the ends of justice would be met in sentencing him to the period already undergone by him in confinement. we however acquit him of the charge under section 323/34 ipc. the appellant kuldeep singh, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case.16. the impugned judgment of learned trial court stands modified as indicated above.