Pyara Singh and ors. Vs. the State of Rajasthan - Court Judgment

Excerpt:
penal code - sections 302/34, 364/34 and 341--prosecution case established beyond reasonable doubt--two eye witnesses of sterling worth--held, conviction is rightly based on their testimony.;prosecution has established the case against the three appellants beyond all reasonable doubt. the two eye witnesses to the occurrence have rightly been taken to be witnesses of sterling worth and conviction has rightly been based on their testimony.;appeal dismissed. - 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. - 1 on the right side of forehead by which frontal bone fractured, dura matter was torn and subdura hammrrhage was caused, would not have been there, there was likely hood of death of the injured on account of the remaining injuries because there was excessive internal as well as external bleeding. that, the prosecution has withheld the material witnesses like gurjeet singh and gurjanta singh first being an eye witness according to the prosecution and second being the person who accompanied naseeb kaur to the police station. the prosecution for the reasons best known to it did not care go get this witness examined. gurjanta singh having accompanied naseeb kaur to police station it would have been proper for the prosecution to examine him but for the reason best known to the prosecution he was dropped as is evident from the order sheet dated july 19,1983. that would however not be sufficient to raise suspicion on the veracity of the testimony of naseeb kaur. there is force in the argument of the learned counsel for the appellants but when the case is substantiated from the evidence of the eye witnesses as discussed earlier, failure to connect the recovery will not make the prosecution case infirm or unproved. 19. in view of the above discussion, we are in perfect agreement:1. this appeal is directed against the judgment dated march 28, 1984 passed by the. additional sessions judge, raisinghnagar by which appellants pyara singh, gurdayal singh and jela singh and jarnel singh were convicted under sections 302/34, 364/34 and 341 1.p.c. and sentenced to imprisonment for life and a fine of rs. 5000/- each, in default of payment of fine to undergo five years r.i. each on the first count, three years r.i. and a fine of rs. 1000/- each, in default of payemnt of fine to undergo one years r.i. on the second count and one months r.i. each on the third count with an order that the substantive sentences for all the charges shall run concurrently.2. briefly stated the prosecution case is that on december 3, 1983 at about 6.30 naseeb kaur (p.w.2), along with her husband bhagwant singh was returning after collecting cotten from the field. they placed the cotton in the house of mahendra singh (p.w.1) brother of bhagwant singh and proceeded towards their own 'dhani' gurjeet singh was also with them. when all the three reached near the 'dhani' of appellant pyara singh, the three appellants and one resham singh (since acquitted by the trial court) came out from the field of cotton. payara singh is said to be armed with 'barchi', gurdayal singh with 'gandasi' and jaila singh with 'lathi' at that time. pyara singh gave a 'lalkar' to bhagwant singh using the words 'tagda ho ja'. he told him that as he was not compromising with him he would be done to death. bhagwant singh tried to run away towards the 'dani' of gulzara singh (p.w.3) but the four miscreants cought hold of him and gave a beating. gurdayal singh warned that in case there would be murder at his 'dhani' he would go against the assailants. the assailants thereafter took bhagwant singh dragging towards the 'dhani' of pyara singh. naseeb kaur (p.w.2) asked them to release her husband and she went behind the assailants but she was warned that in case she would follow them, she would also be done away with. they told her that bhagwant singh was their enemy. the assailants took bhagwant singh inside the 'dhani'. shrieks of bhagwant singh were heard for sometime and not therearter. naseeb kaur along with gurjeet singh went to the 'dhani' of mahendra singh and informed him about the incident. mahendra singh having fracture in his leg, asked naseeb kaur to go to the police station. they went to gurjanta singh, who accompanied them to the police station in the tractor of amarjeet father of gurjeet. at the information lodged f.i.r. (ex. p/1) was recorded. balwant rai (p.w.11), station house officer of that police station went to the site and in the morning proceeded with necessary investigation. the dead body of bhagwant singh was found covered with a jute-bag in the 'dhani' of pyara singh beneath a tree. the s.h.o. prepared the required memos. the autopsy over the dead body was conducted by dr. satya prakash sharma (p.w.10), medical officer, incharge primary health centre, anoopgarh at 2.45 p.m. on december 4, 1982. the postmortem examination report is ex.p/28. the doctor noted forty injuries on the scalp, face, chest, abdomen, right arm, left ann, left hand and left lower leg of the deceased. out of these injuries two were incised wounds, three punctured wounds and the remaining injuries were lacerated wounds, abrasions and contusions. there were six fractures. the cause of death according to the doctor was laceration of brain due to freacture of frontal bone by a blunt weapon and shock caused by the cumulative effect of the multiple injuries on different parts of body by different types of weapons. the lacerated wound on right parietal region of the scalp was in the opinion of the doctor sufficient to cause death in the ordinary course of nature. he how ever stated that even in case injury no. 1 on the right side of forehead by which frontal bone fractured, dura matter was torn and subdura hammrrhage was caused, would not have been there, there was likely hood of death of the injured on account of the remaining injuries because there was excessive internal as well as external bleeding. the shoes, turban and 'kada' of the deceased were taken in possession from the site vide memos ex.p/6, pyara singh and gurdayal singh were arrested vide memos ex.p/30 and ex.p/31 respectively on december 11, 1982. jernail singh was arrested on november 14, 1982 vide memo ex. p/32. in pursuance of the information (ex.p/33) furnished by pyara singh while in custory, one 'barchha' and one 'bed sheet' with one 'watch' with black dial and black strap tied in the corner of the bed-sheet were recovered from beneath the heap of barlay from his residential 'dhani' at his instance vide memo ex.p/11. in pursuance of the information ex.p/34 furnished by gurdayal singh while in custody one 'gandasi' from his 'dhani' from beneath the heap of cotton lying under a cot were recovered vide memo ex.p/24 at his instance. in pursuance of the information ex.p/35 furnished by jaila singh one lathi was recovered at his instance from the roof of his residential 'kotha' vide memo ex.p/25. articles recovered were sealed and deposited in the malkhana of the police station and were sent for chemical examination through p.w.9 randhir singh, l.c. of that police station. the identification parade of the watch and the bed-sheet was conducted by shri r.k. jain, chief judicial magistrate on december 9, 1982 and the articles were identified by naseeb kaur (p.w.2) wife of the deceased as belonging to her husband. the identification memo ex.p/38.3. upon completion of necessary investigation charge sheet against the appellants and resham singh coaccused was filed in the court of munsif and judicial magistrate, anoopgarh. the case on committal reached the court of additional sessions judge, raisinghnagar. the learned additional sessions judge chargesheeted the appellants for the offences under sections 302,302/34, 364,364/34, 341 and 120b, i.p.c. upon denial of the charges by the accused, trial proceeded. prosecution examined twelve witnesses in all. in their statements under section 313 of the code of criminal procedure all the accused denied the allegations levelled against them and stated that the witnesses were stating so out of enmity. no defence witness was examined. the learned trial judge did not hold the case established against resham singh and acquitted him of the charges. he however, held the case established against the three appellants for the charges under sections 302/34,364/34 and 341, i.p.c. and convicted them for those charges vide the judgement under appeal.4. we heard mr. m.l. garg, learned counsel for the appellants and mr. vijay singh choudhary, learned public prosecutor for the state assisted by mr. h.s. sandhu, learned counsel for the complainant.5. the learned counsel for the appellants has assailed the findings of the learned trial judge on a number of grounds. it has been strenuously contended that prosecution case solely rests on the testimony of two witnesses viz. naseeb kaur (p.w.2) and gulzara singh (p.w.3) and both of them are inimical to pyara singh. that, the prosecution has withheld the material witnesses like gurjeet singh and gurjanta singh first being an eye witness according to the prosecution and second being the person who accompanied naseeb kaur to the police station. learned counsel also raised the point of delay in lodging the f.i.r. and the information being sent to the concerned court and submitted that all this shows that there was manipulation in the case. mr. garg emphatically argued that it is a case of no evidence in which the investigating agency has introduced naseeb kaur and gulzara singh as eye witnesses so that pyara singh and others may be falsely implicated. it has also been argued that the dead body was found covered with a jute bag in the 'dhani' of pyara singh in open and possibility of somebody else placing the dead body at that place and pyara singh and others having no knowledge of it cannot be ruled out. it has been emphatically argued that there were no dragging marks on the way through which according to naseeb kaur, bhagwant singh was taken by the miscreants.6. the learned public prosecutor controverting these contentions submitted that presence of naseeb kaur (p.w.2) at the site stands duly established. gulzara singh's 'dhani' was nearby and he has supported the testimony of naseeb kaur in all meterial particulars and non examination of gurjeet singh would not effect the prosecution case. about gurjanta singh, the argument is that he was not an eye witness and therefore, he could not have thrown any light in the matter. the learned public prosecutor argued that the dead body being found in the open will not help the defence case because it was found in the 'dhani' of pyara singh and none else could have placed it there without the inhabitants being aware of it.7. the prosecution case rests on the testimony of naseeb kaur and gulzara singh. gurjeet singh was there with naseeb kaur. his father amar jeet having come to stay near the 'dhani' of mahender singh for sometime they were treating him as brotherand gurjeet singh as nephew. it is for this reason that naseeb kaur had stated about gurjeet singh being her nephew. gurjeet singh has also said to have accompanied naseeb kaur to police station in the tractor. he therefore, was an important witness in the matter. the prosecution for the reasons best known to it did not care go get this witness examined. the order sheet dated november 17, 1983 of the trial court shows that there was a telegram about the ailment of the gurjeet singh sent to the court. the prosecution instead of seeking further time dropped the witness. this being the position it cannot be said that the witnesses, if produced would have statced against the prosecution. even it is an infirmity in the prosecution care, the case cannot be discarded simply because this witness has not been examined if from the statements of the other witnesses the case is established. gurjant singh was not an eye witness to the occurrence. naseeb kaur had not approached him innediately after the occurrence. in between the occurrence and her going to gurjant singh she has met mahendra singh and narrated the facts to him. mahendra singh has appeared in the witness box and stated what was told to him by naseeb kaur. gurjanta singh having accompanied naseeb kaur to police station it would have been proper for the prosecution to examine him but for the reason best known to the prosecution he was dropped as is evident from the order sheet dated july 19,1983. that would however not be sufficient to raise suspicion on the veracity of the testimony of naseeb kaur.8. the important point would be whether naseeb kaur and gulzara singh are witnesses of credence and on their testimony the prosecution case can be held to be established. naseeb kaur (p.w.2) has stated about four miscreants coining out from the field and giving a 'lalkar' to her husband and their giving a beating to him and taking him towards the 'dhani' of pyara singh. she has-also stated about hearing of shrieks of her husband only for sometime and then her going to her brother-in-law mahendra singh and narrating him the facts. she has also stated about gulzare singh (p.w.3) being there at his 'dhani' and warning the miscreants that in case they would commit murder at his 'dhani' he would go against them. similar is the version of gulzara singh.9. the learned counsel for the appellants has laid much stress on the discrepancy in the statements of these two witnesses on the point that whereas naseeb kaur has stated about gulzara singh coming out at her instance and warning the assailants, gulzara singh has not stated so. he has stated about the four accused giving beating to bhagwant singh and taking him from there and he warning the assailants but he did not go near them. according to him when the four assailants tool bhagwant sing towards their 'dhani' naseeb kaur and gurjeet singh went to him and told him about it. he told them that what can he do. they may go to the police. he stated that he did not go to the 'dhani' of the accused because he himself had the risk. however, on all material points gulzara singh (p.w.3) has supported naseeb kaur (p.w.2).10. the learned counsel for the appellants has tried to discredit the testimony of these two witnesses in view of their conduct. according to him naseeb kaur being the wife of the deceased in the natural course of events would have rushed to his rescue instead of seeing the occurrence from a distance. naseeb kaur has expalined this conduct. she has stated that she had to remain at a distance of about half killa because when she tried to go behind her husband she was threatenhed that in case she would follow, she would also be done away with. she being a lady could not have done more than that, specially so when the assailants were armed with weapons and gulzara singh also did not come to hes help. so far as gulzara singh is concerned, his not going to the rescue to bhagwant singh was quite natural because his relations with the accused party were not cordial.11. mr. garg, learned counsel for the appellants has stressed that the two wintesses on whom the trial judge has placed reliance were inimical to the accused and therefor without independent corroboration their testimony should not have been attached any weight.12. naseeb kaur (p.w.2) has stated that her husband had filed a suit four years back against pyara singh as the latter had beaten him and pyara singh was insisting upon a compromise. that, on the day of occurrence he had told that as bhagwant singh was not compromising the matter, he would be killed and that he was their enemy. after his telling so the assailants had started beating bhagwant singh and took him to the 'dhani' of pyara singh. the enemity was of course there and that might be the motive for the commission of the crime but naseeb kaur's presence along with her husband was natural. mahendra singh brother of bhagwant singh has supported her on the points that on that evening she and her husband had placed their cotton in his house. naseeb kaur's not going to her own 'dhani' after the incident is also not strange because as stated by her, her father-in-law vichitra singh has since expired and there was no other member in his family. it was therefore, quite natural for her to go to mahendra singh.13. the learned counsel for the appellants has also tried to convince that had she gone to mahendra singh, he would have accompanied her to the police station. mahendra singh and naseeb kaur both have stated that he having a fracture in his leg was not in a position to move much and as such he asked naseeb kaur to goto the police station with gurjeet singh.14. gulzara singh (p.w.3) had admitted that bhagat singh is the brother of accused pyara singh and bhagwant singh and bachan singh and gurbachan singh, had institued a case against him, karnail singh and gurbachan singh. that in that incident he, bhagwant singh, jagir singh and tara singh were injured. he and his companions were sentenced to three years imprisonment in the matter and he had undergone the sentence. he has admitted that there was enemity on account of that but he has also stated that they used to visit the 'dhani' of the accused.15. there is substance in the argument of the learned public prosecutor that because of this enemity gulzara singh might not have gone near the assailants to rescue bhagwant singh because in that case he himself would have sufferred at their hands. gulzara singh has categorically stated that he had warned the assailants that in case they would commit the murder in his 'dhani' he would go against them. this is not in dispute that gulzara singh's 'dhani' was closed to the 'dhani' of pyara singh and the place where from bhagwant singh was taken was visible from his 'dhani'. from the lengthy cross-examination of the witness nothing can be brought on record to suggest that he was telling a lie in order to falsely implicate the appellants.16. learned counsel for the appellants next argued that the statements of naseeb kaur (p.w.2) stands falsified from the fact that there was no mark of dragging on the route. to substantiate his arguments he referred to the case of nathu singh v. the state of rajasthan (i) 1985 (10) r.cr.c. 80 wherein the evidence of the eye witnesses was taken to be suspicious for the reason that no blood was found at the place where the victim was allecged to have fallen and there was absence of trail of blood from there to the place he was said to have been taken after beating.17. naseeb kaur (p.w.2) was seeing the accused from some distance. there were four persons, two of which are said to have cought hold of the hands of the victim and the other two his legs, and in that case dragging marks might not have been there. the number of injuries on various parts of the body substantiates the prosecution case of the injured being given beating from the place he was taken away and also inside the 'dhani' where from shrieks were heard for somtime.18. the learned counsel for the appellants submitted that, the report of the chemical examiner not being placed before the court, recovery of the weapons would not connect the assailants with the commission of the crime. there is force in the argument of the learned counsel for the appellants but when the case is substantiated from the evidence of the eye witnesses as discussed earlier, failure to connect the recovery will not make the prosecution case infirm or unproved.19. in view of the above discussion, we are in perfect agreement: with the learned trial judge that prosecution has established the case against the three appellants beyond all reasonable doubt. the two eye witnesses to the occurrence have rightly been taken to be witnesses of sterling worth and conviction has rightly been based on their testimony.20. consequently, the appeal having no substance is dismissed.