Tej Singh and anr. 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. - kesar singh was coming from his well; 3. it is contended by the learned counsel for the appellants that the witnesses produced by the prosecution are wholly unreliable; as well as from the contents of the f. this witness has tried to make improvements on various aspects and as such the evidence of this witness does not inspire confidence as he is not a reliable witness. the size of the injury, the part of the body selected by the accused-appellant and the weapon used by him clearly show that the intention of the accused-appellant tej singh was very much clear and he inflicted the injury on the throat of raghunath with an intention to cause his death.b.r. arora, j.1. this appeal is directed against the judgment dated 21-9-1989, passed by the additional sessions judge, bali, by which the learned additional sessions judge convicted accused-appellant tej singh for the offences under sections 302 and 324, i.p.c. and sentenced him to undergo imprisonment for life and a fine of rs. 100/- and in default of payment of fine further to undergo three months' rigorous imprisonment for the offence under section 302, i.p.c. and six months' rigorous imprisonment for the offence under section 324, i.p.c. and directed that both the substantive sentences shall run concurrently. he, also, convicted accused kesar singh for the offence under section 302/34, i.p.c. and sentenced him to undergo imprisonment for life and a fine of rs. 100/- and in default of payment of fine further to undergo three months' rigorous imprisonment.2. appellants tej singh and kesar singh were tried by the learned additional sessions judge, bali, for the offences under sections 302, 307 and 342/34 i.p.c. the case of the prosecution, as unfolded in the f.i.r., is that on 26-11-1985, at about 11.00/11.30 p.m., some boys were playing kabbadi in a lane situated in between the shops of ahmed bhai, jeewa ram and sher khan, in village aamli. raghunth, along with karma ram, megha ram, chela ram meena, informant kesa ram and panna ram, were, also, sitting on a chabutari. informant kesa ram left the place and came to his house. after he came to his house, accused tej singh and kesar singh came there and some altercations took place between them and raghunath. accused tej singh caught-hold of raghunath, felled him on the ground and sat on his chest and accused kesar singh caught hold of the hand of deceased raghunath and thereafter accused tej singh cut the throat of raghunath. sangram raised an alarm 'come out-side, come out-side, father has been killed,' whereupon kesa ram came out of the house and by that time the accused had run away. raghunath was being brought to the house on a cot but he succumbed to the injury in the way. this incident was witnessed by kapoora ram, jeewa ram, kesa ram, lasa ram and mangi lal. the prosecution, in support of its case, examined twenty witnesses. dhanna ram, who is the son of deceased raghunath, was, also, an eye-witness but as he was not produced by the prosecution, therefore, he was called and examined as a court witness by the learned trial court and his statement was recorded as pw 21. the accused, in their defence, examined five witnesses. the case of the accused, in defence, was that at about 10.00 p.m. kesar singh was coming from his well; in the way when he reached in front of the house of raghunath, he found raghunath standing in front of his house; raghunath abused him and asked why he had threatened his son and lodged a false report against him, whereupon he was threatened of the dire consequence; he proceeded towards his house and when he reached near the shop of ahmed bhai, raghunath and dhanna ram came from behind and told him that they would teach him a lesson (tere dadagiri nikal dete hain); idrish and kalu singh were sitting in front of the shop of ahmed bhai. after three-four minutes somebody hit with a lathi from behind on his person; dhanna ram and some more persons pulled him out from the house and inflicted injuries by a danda and lathis; he ran away to save his life and entered the house of sher khan; sher khan and shakina saved him and asked raghunath and other persons not to kill him and they did not permit dhanna ram and raghunath to enter their house; he thereafter left the house of sher khan by scaling over the all and he and tej singh thereafter went to the police station to lodge the report but instead of registering their report, the police arrested them. the learned additional sessions judge, after trial, convicted and sentenced the accused-appellants, as stated above, and it is against this judgment dated 21-9-1989 that the appellants have preferred this appeal.3. it is contended by the learned counsel for the appellants that the witnesses produced by the prosecution are wholly unreliable; they have suppressed the genesis of the incident and pw 7 kesa ram, who lodged the f.i.r., has given a complete go-by to the version given by him in the f.i.r. lodged by him and the prosecution has developed a new story during the trial and made some improvements in the prosecution case during trial from the case set-up by the prosecution at the earlier stage. even as per the case of the prosecution, two different versions have come in the evidence one given by informant kesa ram and the other eye witnesses, and the other given by pw 21 dhanna ram; and only the relative and interested witnesses of the complainant party supported the prosecution case while the independent witnesses of the area, who were admittedly present even as per the prosecution witnesses too, have not supported the prosecution case. it is further contended by the learned counsel for the appellants that some of the prosecution witness, who according to pw 7 kesa ram, were present at the scene of the occurrence and are independent witnesses, have not been produced by the prosecution and they have been produced by the accused-party and they have supported the defence version. it is further contended that there are material contradictions and discrepancies in the statements of the prosecution witnesses and the learned trial court committed an error in convicting and sentencing the appellants and the judgment passed by the learned lower court deserves to be quashed and set aside. the learned public prosecutor, on the other hand, has supported the judgment passed by the learned trial court.4. we have considered the submissions made by the learned counsel for the parties.5. pw 7 kesa ram, pw 8 man singh, pw 9 jeewa ram, pw 10 sangram, pw 13 hari lal, pw 16 bhima and pw 21 (court witness) dhanna ram are the eye-witnesses of the occurrence. according to the prosecution case, these witnesses were present at the scene of the occurrence and they have supported the prosecution case. in the f.i.r., karma ram, chela ram, dhanna ram, kapoora ram, jeewa ram, kesa ram, lasa ram and mangi lal were, also named-out as the eye-witnesses, but out of them kapoora ram, karma ram and chela ram, though produced by the prosecution, have not shown themselves to be the eye-witnesses of the occurrence and only jeewa ram has given his evidence as an eye witness. kapoora ram has only stated that at about 8.00/9.00 p.m., he saw raghunath lying dead in front of the house of ahmed bhai and he was bleeding at that time. pw 2 karma ram has, also, stated that he was knowing raghunath who is, now, dead but when and at what time he died, he cannot say. according to him, the boys were playing kabbadi but he cannot say who they were. chela ram has stated that kesa ram, panna ram, bhera ram, lasa ram, sangram and dhanna ram were playing kabbadi at 10.00 p.m. on the relevant day and at that time accused kesar singh came there and asked the boys not to play kabbadi and to go to their houses. he went to his house and at that time raghunath was sitting on a chabutari. in the morning he heard that raghunath has been killed. the statement of pw 4 kesa ram is, also, similar to the statement of pw 3 chela ram. this evidence of the eye witnesses is sought to be corroborated by the evidence of pw 6 jai singh, who is an hotel owner, who has stated that a quarrel took place between tej singh and hariya earlier to this incident and kesar singh asked hariya why he had raised quarrel with tej singh. pw 14 hariya - the other son of deceased raghunath - has been produced by the prosecution to prove the earlier incident that the quarrel took place between him and accused tej singh and kesar singh and the villagers pacified them. pw 11 sadul singh, pw 12 baba ram and pw 15 bhika ram are the motbir witnesses to the recoveries. pw 7 dr. gopal chand gandhi was the medical officer incharge, primary health centre, behda, who conducted the postmortem on the deadbody of raghunath. pw 19 sultan ahmed was the head constable, who was the malkhana incharge at the police station and his evidence is to the effect that the articles deposited with him remained in the same sealed condition from the date they were handed over to him till he handed-over the same to pw20 sumer singh, f.c., for taking the articles for f.s.l. examination to the state forensic science laboratory, jaipur. pw 18 ram kishan was the s. h. o. who conducted the investigation. pw 20 sumer singh is the constable who took the articles from the police station for f.s.l. examination to the aforesaid laboratory and deposited the same in the laboratory in the same sealed condition.6. the prosecution case, thus, rests upon the ocular testimony of the eye witnesses. pw 7 kesa ram has stated that on 26-11-1985, at about 10.30/ 11.00 p.m., in village aamaliya, the boys were playing kabbadi and he was standing there. sometime thereafter he went to his house but his father raghunath remained sitting there. karma ram, chela ram and panna lal were, also, there. he heard the cries of his brother and on hearing the cries he came out of the house and saw accused tej singh sitting on the chest of his father and accused kesar singh had caught hold of his father. tej singh inflicted injury by a razor on the neck of his father. kesar singh tried to run away in the house of one mohammedan and he inflicted two-three injuries by a lathi to kesar singh. sher khan and sardar khan saved kesar singh. he thereafter followed tej singh but he went inside the house of jorawar singh and jorawar singh bolted the door. he returned to his father but by that me his father died. accused tej singh inflicted injury to sangram singh on his hand. thereafter they went to the police station and lodged the report at 1.00 a. m. this witness has made several improvements from his statement recorded under section 161, cr. p.c. as well as from the contents of the f.i.r. he has not witnessed the occurrence as per his earlier versions given in the f.i.r. and in the statement recorded under section 161, cr. p.c. when he was confronted with his earlier statements, he stated that he never stated so before the police or in the f.i.r. in the cross-examination he has completely disowned the f.i.r. itself. the evidence of this witness, therefore, does not inspire confidence. his evidence is not of sterling worth and though he had not seen the occurrence but he has tried to make himself as an eye-witness of the occurrence.7. the next eye-witness to the occurrence is pw 8 mang singh. he has stated that at about 10.30 p.m. on the date of the incident, he was going to his house from the arhat and heard the cries. he went to the place of the occurrence. bhima ram was, also, coming from that side. when he and bhima ram both, reached near the house of raghunathji, they saw tej singh sitting on the chest of raghunath and kesar singh had caught hold the beard of raghunathji and on seeing them, kesar singh and tej singh ran away. the hands of accused tej singh were smeared with the blood and he was carrying a weapon with him, which might be a knife or a razor. kesa ram came out and inflicted injuries by a hockey-stick to kesar singh. sher khan rescued kesar singh. he stayed there for sometime and thereafter went to his house. this witness has, also, made some improvements from his statement recorded under section 161, cr. p.c. in his earlier statement, he has not stated about his meeting with bhima ram nor the fact of tej singh's sitting on the chest of raghunath was mentioned by him in his earlier statement. when he was confronted with his earlier statement recorded under section 161, cr. p.c, he stated that he had said so to the police but why it has not been mentioned, he does not know. he has, also stated that in his earlier statement he had stated that the deadbody of raghunath had already been taken to his house while in his statement recorded during the trial he has stated that he never stated so to the police. this witness has tried to make improvement from his earlier statement and more over the name of this witness does not find mention in the f.i.r. itself as an eye-witness to the occurrence though the names of other persons, who were present at the scene of the occurrence, have been mentioned in the fir. in his earlier statement this witness has not stated that he had seen the incident. this witness has tried to make improvements on various aspects and as such the evidence of this witness does not inspire confidence as he is not a reliable witness.8. pw. 8 jeeva ram is the other eye-witness of the occurrence. his name finds mention in the f.i.r., also. he has stated that at about 10/30 p.m., when he came outside the bara, he heard the cries of sangram 'maare re maare re' and saw accused kesar singh and tej singh giving beatings to raghunath. kesar singh had caught hold the beard of raghunath; raghunath was lying on the ground and accused tej singh was sitting on the chest of raghunath and was cutting his throat by a razor. after that bhima ram, mang singh and raghunath singh came there. kesa ram followed accused kesar singh and he was armed with a lathi. thereafter the deadbody of raghunath was taken to his house. a day before, at the hotel of jai singh, some altercations took place between kesa ram and accused kesar singh and kesar singh asked kesa ram why he was abusing tej singh and asked jetha ram to forbid kesa ram to do so otherwise he would have to face the dire consequences. this witness, in the cross-examination, has admitted that he did not see kesar singh and tej singh abusing raghunath. according to this witness, the injury to raghunath was inflicted only by accused tej singh and no overt act has been assigned by this witness to accused kesar singh except that had caught the beard of raghunath.9. pw 10 sangram singh - the another eye witness of the occurrence - has stated that he, along with his brother hari ram, kesa ram, lasa ram and karma ram and some other boys, was playing kabbadi. the accused came there and asked them not to play kabbadi. his father raghunath was sitting on the chabutari and asked the accused why they were forbidding the bodys to play kabbadi, whereupon the accused told him who he was to interfere. all the boys, who were playing kabbadi there', went to their houses. both the accused caught hold of his father, felled him on the ground and dragged him to fifteen to twenty paces and thereafter accused .kesar singh caught hold the beard of raghunath, felled him on the ground and accused tej singh sat on his chest and cut his throat by the razor. he tried to rescue his father but accused tej singh inflicted injury to him by the razor and ran away. kesa ram followed the accused but sher khan did not permit him to enter his house. at the time when accused inflicted injuries to his father, he and his younger brother hari ram were present there and none else was present there and it was only when he raised the alarm that the other witnesses, viz., jeeva ram, dhanna ram, kesa ram etc. came there. kesa ram inflicted two-three hockey injuries to accused kesar singh. in the cross-examination, when he was confronted with his earlier statement made by him during the investigation pertaining to the fact that kesa ram and his father had gone to the house earlier, he stated that he never stated so in his earlier statement ex. d.4. he has, also denied the portions of his earlier statement that all the boys dispersed; he and hari lal were going to their houses and kesar singh followed them to give them beatings. he denied to have made such statement to the police. he has, also, denied the fact in his earlier statement that on hearing the cries his father came-out. he has made several improvements from his statement recorded during the investigation and his evidence, also, cannot be believed in toto. the incident appears to have taken place in some other manner and not in the manner as suggested by this witness. the earlier version given by this witness finds corroboration from the statement of pw 21 dhanna (the court witness). pw 21 dhanna ram has stated that ten-twelve boys were playing kabbadi near the shop of ahmed bhai. accused kesar singh and tej singh came {here and asked the boys not to play kabbadi. they started giving beatings to sangram and hari lal, who raised alarm. he heard the cries and when he and his father raghunathji heard the cries, they came-out from the house. first his father came outside the house, and went towards the place of incident and he followed his father. the accused felled his father (raghunath) on the ground; accused tej singh sat on the chest of his father and cut his throat. what was done by kesar singh, he did not notice. later on he made an improvement and stated that he saw accused kesar singh catching-hold the beard of his father. kesa ram inflicted injury to accused kesar singh. no overt act has been assigned by this witness to accused kesar singh. though later on he tried to make some improvement regarding the overt act of accused kesar singh, but that part of his statement cannot be believed.10. pw 16 bhima has stated that he heard the cries near the nohra of mohabbat singh. when he reached near the place of the incident, he saw' accused kesar singh catching hold the beard of raghunath and saw accused tej singh cutting the neck of raghunathji with a razor. sangram singh and hari ram were, also, present there: jeeva and mohan, also, came there and dhanna and kesa, also, came there. the name of this witness does not find place in the f.i.r., though the number of other persons have been shown as the eye-witnesses, who have not supported the prosecution case. in his earlier statement given by this witness during investigation, he has stated that when he reached the place of the incident, raghunath had already breathed his last and he did not see accused kesar singh and tej singh running from the place of the incident. when he was confronted with his earlier statement, the witness stated that he never said so to the police. he has, also, made improvements on several points from his earlier statement. a witness who in his earlier statement has not stated that he witnessed the occurrence and did not see the accused running, and if he tries to make improvement and tries to become an eye-witness of the occurrence then the testimony of such a person cannot be believed and he cannot be said to be an eye-witness to the occurrence. moreover, the name of this witness does not find mention in the f.i.r. as the eye-witness.11. two types of stories have come in the evidence of the eye-witnesses. according to one version, the altercations took place and the accused-party caught hold of raghunath; accused tej singh cut his throat and accused kesar singh caught hold his beard and thereafter the accused ran away; kesa ram followed them and inflicted injuries, to accused kesar singh. the second set of the prosecution story, which has come in the evidence of the eye witnesses, is that hariya and sangram singh were given beatings by the accused; sangram singh raised the alarm; deceased raghunath came out of his house; thereafter some altercations took place; the accused caught hold of raghunath, felled him on the ground and accused tej singh cut the throat of raghunath by the razor which he was carrying. though there is some discrepancies with regard to the incident, but from the evidence of all the aforesaid eye-witnesses it is established that accused tej singh cut the throat of deceased raghunath by the razor and raghunath died. the only overt-act assigned to accused kesar singh is that he caught-hold the beard of raghunath, but this part of the story is, also, not supported by pw 21 dhanna (the court witness). when raghunath had already been fallen down on the ground and accused tej singh was sitting on his chest then there was no necessity for accused kesar singh to catch-hold the beard of raghunath because raghunath had already been over-powered by accused tej singh. this overt-act his been falsely assigned to accused kesar singh. accused kesar singh himself had sixteen injuries on his person and these injuries have not been explained by the prosecution. the prosecution has, also, not come with the clean hands regarding the genesis of the incident. therefore, on the basis of the evidence, produced by the prosecution, accused kesar singh cannot be convicted for the offence under section 302/34, i.p.c. and he deserves to be acquitted. the learned additional sessions judge was, therefore, not justified in convicting and sentencing accused-appellant kesar singh.12. the next question, which requires consideration, is: what offence has been made-out against accused-appellant tej singh according to the learned counsel for the appellants, accused tej singh inflicted only one injury to raghunath by a razor and he had no intention to kill raghunath and, therefore, his conviction for the offence under section 302, i.p.c. is wholly illegal and at the most he can be convicted for the offence under section 304 part ii, i.p.c. it has, also, been contended by the learned counsel for the appellants that the doctor has not opined that the injuries inflicted by accused tej singh to deceased raghunath was sufficient in the ordinary course of nature to cause his death. we have perused the statement of pw 17 dr. gopal chand gandhi and, also, seen the post-mortem report. the following injury was found on the dead body of raghunath:- 'incised wound 9' x 2 1/2' 3' extending from lateral border of right sterno mastoid muscle to two inches behind the lateral border of left sterno mastoid muscle skin superficial facia etc. are widely detracted apart in the centre of the neck and divided ends of trachea are protruding through the wound. trachea is divided completely l 1/2' above the suprasternal notch. sterno mastoid muscle on right side exposed but not divided. on left side it is divided at the junction of lower one third and middle on third. external jugular vessel is also cut at the same level on left side.'the doctor has specifically opined that if the patient is not immediately attended then the death was certain due to the injuries and further stated that by 'immediately' he meant the period extending to less than half an hour. appellant tej singh did not leave anything to chance. he had cut the throat of deceased raghunath by a razor. the size of the injury, the part of the body selected by the accused-appellant and the weapon used by him clearly show that the intention of the accused-appellant tej singh was very much clear and he inflicted the injury on the throat of raghunath with an intention to cause his death. the learned trial court, also, convicted accused-appellant tej singh for the offence under section 324, i.p.c. for inflicting injury to sangram singh. as per the prosecution case, the accused-appellant tej singh was having a razor with him and he caused injury to injured sangram, also, by the razor. pw 17 dr. gopal chand gandhi does not support this fact. according to him, the injury found on the person of sangram could not be caused by a razor. the evidence of sangram singh and other eye-witnesses, also, do not find corroboration from the medical evidence and, therefore, appellant tej singh cannot be convicted for the offence under section 324, i.p.c. and he deserves acquittal on this count.13. in the result, the appeal, filed by accused-appellants is partly allowed. the conviction and sentence of accused-appellant tej singh for the offence under section 302, i.p.c. are maintained but he is acquitted of the offence under section 324, i.p.c. the appeal of accused-appellant kesar singh is allowed and he is acquitted of all the charges levelled against him. the judgment, passed by the learned trial court, convicting and sentencing the accused-appellant kesar singh is set aside. appellant kesar singh is on bail and he need not surrender. his bail bonds are cancelled.