Mangu Singh Vs. State of Rajasthan - Court Judgment

Excerpt:
criminal procedure code, 1973 - section 374(2)--appeal--appreciation of evidence--evidence of eye-witness disbelieved by the trial court as regards other co-accused--same eye-witness cannot be relied upon to convict the accused-appellant--injuries sustained on one of the accused also not explained by the prosecution--genesis of the incident thus concealed--appellant entitled to benefit of doubt.;appeal allowed - - 1. as many as five accused persons namely (1) bhanwar singh, (2) mangu singh s/o pyar singh, (3) shankar singh, (4) poor singh and (5) mangu singh s/o bhanwar singh were arranged before the learned sessions judge, jhalawar for having committed murder of amar singh in sessions case no. the co-accused bhanwar singh, shankar singh, poor singh and mangu singh s/o bhanwar singh were however acquitted. while he along with his brother amar singh (now deceased) was sitting in his house, madan singh s/o mangu singh came over there and told amar singh that his father needed him at the well. amar singh thereupon accompanied madan singh and proceeded towards the well. after some time, on hearing hue and cry he together with peeru singh rushed towards the well. there he saw mangu singh s/o bhanwar singh and mangu singh s/o pyar singh armed with sword and bhanwar singh,.shodan singh, poor singh and shankar singh with the pharsis. mangu singh inhabitent of lakhahedi gave sword blow on his head, whereas shodan singh and poor singh inflicted lathi blows on the face and hand of amar singh. 5) truthful qua the co-accused bhanwar singh, shankar singh, poor singh and mangu singh s/o bhanwar singh but convicted the appellant treating the said witnesses as wholly reliable. 2) we find that informant bhawani singh according to fir rushed to the well after hearing hue and cry. it is also borne out from the record that the well was one and a half kilometer away from the village. bhawani singh being the real brother of the deceased appears to be interested in the success of the prosecution case. in his deposition he stated that he along with amar singh rushed to the well. 2) were self contradictory and most unnatural in so far as they relate to other co-accused persons, but those statements were partly reliable qua the appellant mangu singh and he was found guilty by the learned trial judge for the offence under section 302 read with 34 ipc. 3. the evidence of both these witnesses in regard to the participation of four other accused was rejected both by the sessions court as well as by the high court as unreliable, as it was falsified by the medical evidence. 5) were unreliable witnesses qua the co-accused persons, their entire testimony ought to have been rejected.shiv kumar sharma, j.1. as many as five accused persons namely (1) bhanwar singh, (2) mangu singh s/o pyar singh, (3) shankar singh, (4) poor singh and (5) mangu singh s/o bhanwar singh were arranged before the learned sessions judge, jhalawar for having committed murder of amar singh in sessions case no. 243/94. two other accused shodan singh and madan singh being juvenile were charge-sheeted before the juvenile court. learned sessions judge, jhalawar vide judgment dated 27.7.1996 convicted the appellant for the offence under section 302 read with 34 ipc and sentenced him to under go imprisonment for life. the co-accused bhanwar singh, shankar singh, poor singh and mangu singh s/o bhanwar singh were however acquitted. against this judgment of conviction, that the accused-appellant mangu singh s/o pyar singh has filed the instant appeal.2. as per the prosecution case an oral report came to be instituted by bhawani singh (pw. 2) with the police station, gangdhar, district jhalawar on 8.6.1994 at 4.00 p.m. with the averments that at around 1.00 p.m. while he along with his brother amar singh (now deceased) was sitting in his house, madan singh s/o mangu singh came over there and told amar singh that his father needed him at the well. amar singh thereupon accompanied madan singh and proceeded towards the well. after some time, on hearing hue and cry he together with peeru singh rushed towards the well. there he saw mangu singh s/o bhanwar singh and mangu singh s/o pyar singh armed with sword and bhanwar singh,.shodan singh, poor singh and shankar singh with the pharsis. they all had surrounded his brother amar singh and were inflicting blows with sword and pharsis on the person of amar singh. mangu singh inhabitent of lakhahedi gave sword blow on his head, whereas shodan singh and poor singh inflicted lathi blows on the face and hand of amar singh. in the course of the incident mangu singh inhabitent of harnik-heda also sustained injuries. the cause of the incident was enmity between mangu singh inhabitant of harnikheda and amar singh. because of the injuries amar singh succumbed at the spot. the police registered fir no. 74/94 against the accused persons for the offences under sections 147, 148, 149 and 302, ipc and the investigation commenced. the site plan was drawn and the statements of witnesses under section 161, crpc were recorded. sword and pharsis were recovered at the instance of accused persons. on conclusion of the investigation the charge sheet was filed. in due course the case come up for trial before the learned sessions judge, jhalawar.3. the charges under sections 148 and 302 read with 149, ipc were read over and explained to the accused persons, who denied the charges and claimed trial. the prosecution in support of its case examined as many as 11 witnesses. in the statements recorded under section 313, crpc, the accused claimed innocence. no witness in defence however was examined. on hearing final submissions, learned sessions judge convicted the accused-appellant, as indicated herein above.4. we have given our anxious consideration to the submissions advanced before us by mr. prs rajawat learned counsel for the appellant and mr. rajendra yadav learned public prosecutor and with their able assistance, we have scanned the material on record.5. the case of the prosecution mainly rests on eye witness account of bhawani singh (pw. 2) and peeru singh (pw. 5) their testimony was corroborated by the statements of dr. ramesh chand khatik (pw. 1), who conducted autopsy on the body of deceased amar singh. as per autopsy report ex. p-1 the deceased amar singh sustained following four ante mortem injuries:1. right hand amputated from wrist joint. incised wound.2. incised wound 8' x 1' x bone deep extending from the bridge of nose to left ear.3. incised wound 5' x 1-1/2' x brain deep present on the scalp over the crown of head.4. incised wound 1' x 1/4' x skin deep present on the flexor surface of middle 1/3 of right forearm. all four injuries are ante mortem in nature.6. according to autopsy report the cause of death was shock which occurred due to fatal injuries to brain, face and right forearm.7. mr. rajawat, learned counsel for the appellant contends that the sessions judge did not find the testimony of bhawani singh (pw. 2) and peeru singh (pw. 5) truthful qua the co-accused bhanwar singh, shankar singh, poor singh and mangu singh s/o bhanwar singh but convicted the appellant treating the said witnesses as wholly reliable. it is further canvassed that the injuries sustained by accused mangu singh were not explained by the prosecution at the trial and the true origin and genesis of the occurrence was deliberately withheld. the injury report of co-accused mangu singh s/o bhanwar singh was not placed on record', although as per arrest memo (ex. p-13) co-accused mangu singh sustained injuries on his head and various other parts of the body. it is further urged that the appellant has been convicted with the aid of section 34, ipc, whereas there is no evidence on record to establish the ingredients of section 34, ipc. it is also contended that the witnesses bhawani singh (pw. 2) and peeru singh (pw. 5) developed a new case at the trial and from the fir itself it appears that they were not the eye witnesses of the incident. it is further contended that the case of appellant mangu singh is not distinguishable with that of the case of other accused persons, who have been acquitted, as the cause of death of deceased was cummulative effect of injuries sustained on head, face and right forearm and the injuries on face and right forearm were attributed to co-accused.8. per contra, mr. rajendra yadav, learned public prosecutor supported the impugned judgment and canvassed that the charge under section 302/34, ipc was established qua the appellant and he was rightly convicted.9. on analysing the testimony of bhawani singh (pw. 2) we find that informant bhawani singh according to fir rushed to the well after hearing hue and cry. it is also borne out from the record that the well was one and a half kilometer away from the village. but at the trial bhawani singh had developed an entire new case and he became the eye witness of the occurrence. when he confronted with the fir, bhawani singh disowned his earlier statement. bhawani singh being the real brother of the deceased appears to be interested in the success of the prosecution case. on examining his testimony from the angle of trustworthiness we find his presence at the time of the incident most unnatural and we are unable to place any reliance on his testimony.10. peeru singh (pw. 5) is the nephew of the deceased. in his deposition he stated that he along with amar singh rushed to the well. he admitted that when he reached at the spot mangu singh (co-accused) was lying unconscious. he further deposed that the accused mangu singh did not inflict any injury. he did not say in his entire statements that bhawani singh (pw. 2) was present at the spot. he disowned his earlier statement recorded by the police. on a careful scrutiny of his testimony, we find that this witness was not present at the time of the occurrence and we are unable to place any reliance on his testimony.11. investigation officer, tejraj singh (pw. 11) although admitted in his deposition that co-accused mangu singh s/o bhanwar singh sustained injuries and was taken to the hospital in bullock cart, where his injuries were got examined by the medical jurist yet the injury report of mangu singh was not placed on record. mr. tejraj singh further admitted that he did not think it proper to enquire as to how mangu singh had sustained the injuries. the manner in which the investigation was conducted cannot be appreciated and we find that true story of the incident was not brought before the court.12. a look at the impugned judgment of the learned trial judge demonstrates that in para no. 26 of the judgment, learned trial judge has observed that the statements of peeru singh (pw. 5) and bhawani singh (pw. 2) were self contradictory and most unnatural in so far as they relate to other co-accused persons, but those statements were partly reliable qua the appellant mangu singh and he was found guilty by the learned trial judge for the offence under section 302 read with 34 ipc.13. in some that a similar situation, their lordships of supreme court in prem singh v. state of punjab : 1977crilj261 , have indicated in para no. 2 of the judgment thus:there were only two eye witnesses to the incident in which satnam singh met with his death. they were his brothers sadhu singh pw. 2 and gurnam singh pw. 3. the evidence of both these witnesses in regard to the participation of four other accused was rejected both by the sessions court as well as by the high court as unreliable, as it was falsified by the medical evidence. these two witnesses had stated that spear injuries were caused to satnam singh and gurnam singh by the four other accused, but the medical evidence revealed that there were no such injuries. now, if the evidence of these two witnesses was disbelieved by both the lower courts in regard to participation by the four other accused in the incident, it is difficult to see how it could be accepted so far as the role assigned to the appellant is concerned. the conviction of the appellant is founded solely on the evidence of these two witnesses whose testimony cannot be said to inspire confidence in the mind of the court.(emphasis supplied)14. coming to the case on hand as stated earlier that according to autopsy report ex. p-l the death of amar singh occurred on account of cumulative effect of injuries on head, face and right forearm. these injuries were attributed to the appellant and the other co-accused persons. when the learned sessions judge found that bhawani singh (pw. 2) and peeru singh (pw. 5) were unreliable witnesses qua the co-accused persons, their entire testimony ought to have been rejected. the presence of both these witnesses, at the time of the incident, as already observed by us, was unnatural and on the basis of testimony of these witnesses the accused appellant could not have been convicted. it is borne out from the record that the incident had taken place between mangu singh s/o bhanwar singh and the deceased amar singh and both had sustained injuries, that proved fatal to amar singh who died and mangu singh s/o bhanwar singh survived. the participation of the appellant mangu singh s/o pyar singh has not been established by the prosecution beyond the reasonable doubt. as the true origin and genesis of the occurrence was not brought on record, it is difficult to believe the prosecution version. we, therefore, have no option but to give the benefit of doubt to the accused-appellant.15. in the result the appeal stands allowed. the conviction of the appellant mangu singh son of pyar singh for the offence under section 302 read with 34, ipc shall stand set aside and he is acquitted from the said charge. the accused-appellant mangu singh is in jail. he shall be released forthwith, if not required in any other case.