AI Structured Summary
Not yet generated for this judgment
Judgment
Kanwaljit Singh Ahluwalia, J—Balvant Singh and Ratan Singh are two brothers. When brothers fight they fight fiercely and when they are embroiled in litigation, equally they resort to exaggeration and inflate the number of accused. This is the essence of the present case in which we have called upon to determine whether Jaswant Singh son of Ratan Singh and nephew of Balvant Singh appellant died due to shots fired by both Balvant Singh and his son Bittu @ Manjeet Singh or he died due to shot fired only by Bittu @ Manjeet Singh son of Balvant Singh.
Before we revert to the facts of the case, we may highlight that in the present case occurrence had taken place on 31.3.2006 allegedly on the platform (Chabutara) in front of house of Ratan Singh (P.W.19) and the written report was presented on the next day of the occurrence i.e. on 1.4.2006 at 6.05 PM. Special report had reached the Ilaka Magistrate on 3.4.2006 at 11.00 AM. Thus, there is a delay of 24 hours in lodging of the report and delay of 72 hours in reaching of the special report. Equally it is important to notice that the deceased in the present case was discharged from the hospital 5-6 days before his death and he died on 13.4.2006 after 13-14 days of the occurrence.
The Court of Additional Sessions Judge (Fast Track) No. 4, Bharatpur-Headquarter, Deeg vide impugned judgment dated 17.10.2008 held that on 31.3.2006 all the three accused with common intention came in front of the house of Ratan Singh and on exhortation (Lalkar) raised by Billu, Bittu @ Manjeet Singh and his father Balvant Singh had fired from gun each in their hand at Jaswant Singh which led to his death. Saying so the trial court convicted Balvant Singh and Bittu @ Manjeet Singh for offence under Section 302 IPC and Billu Singh with the aid of Section 34 IPC, i.e. under Section 302/34 IPC. Bittu Singh was further convicted for offence under Section 3/25 of the Arms Act. Having convicted the appellants vide impugned judgment dated 17.10.2008, next day thereafter on 18.10.2008 vide a separate order trial court sentenced the appellants as under:--
"Accused, Balvant Singh
U/s. 302 IPC: Life imprisonment, to pay a fine of Rs. 5000/- and in default thereof to undergo three months simple imprisonment.
Accused, Bittu Singh
U/s. 302 IPC: Life imprisonment, to pay a fine of Rs. 5000/- and in default thereof to undergo three months simple imprisonment.
U/s. 3/25, Arms Act: Two years rigorous imprisonment, to pay a fine of Rs. 1000/- and in default thereof to undergo one month simple imprisonment."
Accused, Billu Singh
"U/s. 302/34 IPC: Life imprisonment, to pay a fine of Rs. 5000/- and in default thereof to undergo three months simple imprisonment.
(All the sentences were ordered to run concurrently)"
Aggrieved against their conviction and sentence, the present appeal has been instituted by the appellants.
Initial version leading to registration of the case has emerged in the written report (Ex. P.15) submitted by Ratan Singh (P.W.19) father of deceased Jaswant Singh before Rajendra Singh (P.W.17) who was then posted as S.H.O., Police Station Sikari. The written report (Ex. P.15) when translated into English reads as under:--
"To,
The SHO Sahib, P.S. Sikari.
Sir,
It is submitted that the applicant is keeping his residence in the fields. Yesterday on 31.3.2006 buffalo of my brother Balvant Singh were grazing fodder in our field. My son Jaswant Singh had pushed the buffalo out of the fields. My brother and nephews Bittu and Billu raised a protest and they all three abused my son and left a threat. Yesterday evening at 5.00 PM Balvant Singh S/o. Chetar Singh, Bittu and Billu while giving abuses trespassed into our house. Balvant Singh and Bittu were armed with guns. Billu exhorted in a loud voice (Garaj Kar Kaha) that Jaswant Singh be killed. Saying so, Balvant Singh and Bittu fired at Jaswant Singh from their guns. Jaswant Singh suffered pellet injuries on face, eye, nose, abdomen and chest. The said occurrence was witnessed by Ram Bai w/o Ganga Singh, Surjito Bai w/o Ratan Singh, Suchha Singh S/o. Ratan Singh, etc. Since condition of my son was precarious, he was brought to Govindgarh and from there he was referred to Alwar. At present my son is hospitalized in Government Hospital, Alwar. Report is presented. Legal action be taken.
Dt. 1.4.2006
Sd/- Ratan Singh S/o. Chetar Singh"
Dr. Phool Singh Choudhary (P.W.1) on 1.4.2006 being posted as Medical Jurist at General Hospital, Alwar had examined Jaswant Singh who was lying admitted at Bed No. 8 of surgical Ward. Dr. Phool Singh Choudhary (P.W.1) in injury report (Ex. P.1) had noted the following injuries:--
"1. Punctured lacerated wound in abdomen right side 6 cm lat.... of size 1/4 x 1/4 cm depth with clotted blood.
Punctured lacerated wound in chest right side below nipple of size 1/4 x 1/4 cm depth with clotted blood.
Punctured lacerated wound in chest right side lat. to sternum in middle 1/3rd of size 1/2 x 1/4 cm, depth with clotted blood.
Punctured lacerated wound in right forearm in upper 1/3rd and radial side of size 1/4 x 1/4 depth with clotted blood.
Punctured lacerated wound in right eye lat. at comae of size 1/2 x 1/2 cm depth with heamatoma in right eye.
Punctured lacerated wound in face left side at zygomatic art. Of size 1/4 x 1/4 cm x depth with clotted blood.
Punctured lacerated wound in face near mandible in left side of size 1/4 x 1/4 cm depth with clotted blood.
Punctured lacerated wound in left side of face near angle of mandible of size 1/4 x 1/4 cm depth with clotted blood.
Punctured lacerated wound in lip at leutre of size 1/4 x 1/4 cm depth with clotted blood.
Punctured lacerated wound right side at coaler perl of lip of size 1/4 x 1/4 cm depth with clotted blood.
Punctured lacerated wound in upper part of chest near center and near sternum of size 1/4 x 1/4 cm depth with clotted blood.
Punctured lacerated wound in left thorax upper part of size 1/4 x 1/4 cm depth with clotted blood.
Punctured lacerated wound in left eye at lower lid mandible of size 1/4 x 1/4 cm depth with clotted blood.
Punctured lacerated wound in upper part of chest near sternum of size 1/4 x 1/4 cm depth with clotted blood."
In cross-examination Doctor admitted that dimension of all the injuries noticed in the injury report (Ex. P.1) is similar and they can be caused by one weapon. The exact words of the Doctor are as under:--
Dr. Ravi Mathur (P.W.2) on 1.4.2006 being Radiologist conducted X-ray of Jaswant Singh. As per X-ray report (Ex. P.2), he found no bony injury on the face, chest, abdomen and on other parts of the body. However, he noted presence of pellet lying on middle posterior lateral angle of chest.
Dr. Mukesh Sharma (P.W.3) on 13.4.2006 had conducted autopsy on the dead body of Jaswant Singh deceased and in post-mortem report (Ex. P.4) had found healed wounds similar to those noted in the injury report (Ex. P.1). As per opinion of the Doctor, cause of death was cardiac arrest due to cardiac tamponade which was caused due puncture of left ventricle by pellets.
Prosecution case rests on the testimony of four eye-witnesses, namely Ram Bai (P.W.4), Ratan Singh (P.W.19) father of the deceased, Surjeeto Bai (P.W.20) mother of the deceased and Suchha Singh (P.W.21) brother of the deceased.
Ram Bai (P.W.4) independent witness has turned hostile to the prosecution and stated in court that she is not aware about the occurrence and she cannot narrate anything, qua the incident.
Ratan Singh (P.W.19) father of the deceased being first informant in court deposed that 2 years, 2 months before the occurrence, buffalo of Balvant Singh had grazed fodder in his field. His son Jaswant Singh had objected. Then Balvant Singh, Billu and Bittu had left the threat. On the day of occurrence at 4.30-5.00 PM Jaswant Singh had gone to the shop to buy household articles. After purchasing, he was returning while Balvant Singh, Bittu Singh and Billu Singh all three came to their house. Balvant Singh and Bittu Singh were armed with gun and Billu was armed with Farsi. Bittu started firing at Jaswant Singh and Balvant Singh also fired. We may notice here that first shot is attributed to Bittu Singh.
The witness further stated that shots fired by Bittu and Balvant Singh had caused injuries on the abdomen and head of Jaswant Singh. Billu exhorted that Jaswant Singh be finished. Jaswant Singh due to injuries caused by pellets, for treatment was brought to Govindgarh, from there he was brought to Alwar. From Alwar he was referred to Jaipur. He remained under treatment at Jaipur for 5-6 days. Doctors at Jaipur discharged Jaswant Singh and stated that he be taken to home where he will recover. 2-3 days after discharge from the hospital, he died at home. It will be apposite for us to reproduce following portion of the testimony of the witness in court:--
In cross-examination this witness stated that Jaswant Singh was first taken to Govindgarh where he remained for one hour, then he was brought to General Hospital, Alwar. Police came there and he lodged the report. In court the witness stated that accused had not entered into his house. Blood had fallen on the Chabutara (platform) which was constructed in front of the house and pellets had also hit the walls of the house. This witness further stated that his son was not operated at Jaipur. The witness denied the suggestion that Jaswant Singh had recovered and died at home due to consumption of excessive liquor.
Surjeeto Bai (P.W.20) mother of the deceased also stated that on the day of occurrence Balvant Singh and Bittu came and fired shots at Jaswant Singh.
Suchha Singh (P.W.21) brother of the deceased stated that first shot was fired by Bittu and second shot was fired by Balvant Singh. The exact words of the witness are as under:--
Shri Biri Singh Sinsinwar, learned senior counsel, duly assisted by Shri Rajesh Choudhary has canvassed before us that the entire prosecution case is false and there is a delay in lodging of the report. Therefore, we should discard the entire prosecution version and acquit the accused. To fortify the above submission, learned counsel has drawn our attention to the site plan (Ex. P.6).
A perusal of the site plan reveal that ''F'' is a field where wheat was sown and same is in possession of the complainant party. ''E'' is a place where deceased Jaswant Singh received gunshot injury, thus is the field of accused Balvant Singh. The site plan (Ex. P.6) further reveal that at the road which goes towards Sikari at point ''A'' Bittu was standing, at point ''B'' it is shown that Balvant was standing and at point ''C'' is another place on Billu was standing. The distance between point ''E'' and point ''A'' from where Bittu had fired a shot is 65 steps and distance between ''B'' and ''E'' from where Balvant had fired a shot is 60 steps. It is contended that the witnesses have not only lodged the FIR after 24 hours and the special report had reached to Ilaka Magistrate after 72 hours of the lodging of the FIR, but in the present case the witnesses have also shifted the place of occurrence. In the site plan (Ex. P.6), shot had hit Jaswant deceased in the field of accused and the accused are stated to be standing on the road, whereas in the FIR it was stated that the accused while giving abuses trespassed into the house of the complainant and had caused injuries. It is further submitted that the witnesses may tell a lie, but the circumstances will not. It is contended that seeing the dispersion of pellets on the body of Jaswant Singh deceased, a departure was made from the story in the FIR and in the court a new story was introduced that Jaswant Singh after purchasing household articles was returning when shots were fired at him by the accused.
Sukhendra Singh (P.W.22), investigating officer, in court stated that he had prepared the site plan (Ex. P.6). In cross-examination this witness stated as under:--
Thus, it is apparent that neither any pellet marks were found on the wall of the house, nor blood was recovered from the house. Even the platform (Chabutara) was not having any pellet marks or blood. The investigating officer had stated that he had lifted one empty cartridge from a place where blood was lying and the blood was found from the place where the crop was standing and same was in the field of accused.
We may also have notice that vide memo (Ex. P.7), the investigating officer has lifted only one empty cartridge from the field. Furthermore, during investigation vide memo (Ex. P.13) only one gun has been recovered from the accused Bittu @ Manjeet Singh. Thus, investigating agency also had not pursued the case of complainant after recovery of one empty cartridge vide memo (Ex. P.7) and recovery of one gun vide Exhibit-P.13.
Taking totality of the circumstances, we are of the considered opinion that, indeed, witnesses have shifted the place of occurrence, even though residence of Ratan Singh (P.W.19) father of Jaswant Singh deceased is in the filed as per site plan (Ex. P.6), deceased Jaswant Singh had received pellet injury at point ''E'' which is in the field of Balvant Singh accused and in the site plan (Ex. P.6) Bittu @ Manjeet Singh is standing at point ''A'' at a distance of 65 steps. Fourteen injuries on the person of Jaswant Singh which are on abdomen, chest, right arm, right eye, face show that pellets have dispersed widely and it can be result of one shot fired from great distance. Thus, the shot has been fired from a long distance prove wide dispersion of pellets on the body of deceased. This important aspect lend corroboration to the site plan (Ex. P.6).
Hon''ble Apex Court in Ghurey Lal Vs. State of U.P., (2008) 10 JT 324 : (2008) 10 SCALE 616 : (2008) 10 SCC 450 : (2008) 2 UJ 991 : (2008) AIRSCW 1487 noticed extract from treatise on ballistics as under:--
"25. Firearms in Criminal Investigation and Trials was written by a distinguished professor Dr. B.R. Sharma. He has written in some detail about.12 bore guns. This book also defines Pellet Pattern which reads thus:
"Pellet Pattern.--The area covered (pellet spread) by the pellets fired from a shotgun is proportional to the distance between the muzzle of the firearm and the target. Greater the range, greater is the area covered by the pellets, (emphasis supplied). The spread of the pellets is affected mainly by the length of the barrel of the firearm and its muzzle characteristics (whether it is choked or not). The condition of the ammunition also affects the results. If experiments are performed with the same firearm and ammunition of the same make and batch, the test patterns provide fairly accurate estimates of the range.
Generally, the whole charge enters the body en masse up to a range of about two metres in a factory-made.12-bore shotgun. It forms a rat hole of about two to six centimeters in diameter. The rat hole is surrounded by individual holes when the range of fire is about two to seven metres...."
Ratan Singh (P.W.19) has also deposed in court that Bittu had first fired the shot followed by another shot by Balvant Singh. During investigation only one empty cartridge was recovered. Investigating agency has also recovered only one gun. To arrive at a conclusion that only one gun was used in the occurrence, we have opinion of Dr. Phool Singh Coudhary (P.W.1). He in cross-examination, as already reproduced by us, has also stated that similar dimension of wounds suggests that injuries were caused by one firearm.
Thus, taking into consideration a dispersion of shot distance given in site plan i.e. 65 steps from point ''A'' to point coupled with the fact that it had not caused serious harm and the deceased was discharged from the hospital and after 2-3 days of discharge and after 13 days of occurrence, he had died at home, alongwith the fact that there is a delay of 24 hours in lodging of the report and of 72 hours in reaching of the special report to the Ilaka Magistrate, we are of the view that in the present case witnesses have not only shifted the place of occurrence, but have inflated the number of accused also. The witnesses which can make departure from the story given in the FIR and shift the place of occurrence can also inflate the number of accused.
In Bijoy Singh and Another Vs. State of Bihar, AIR 2002 SC 1949 : (2002) CriLJ 2623 : (2002) 2 Crimes 437 : (2002) 1 JT 372 Supp : (2002) 3 SCALE 592 : (2002) 9 SCC 147 : (2002) 3 SCR 179 : (2002) 1 UJ 749 : (2002) AIRSCW 1873 : (2002) 4 Supreme 362 , the Hon''ble Supreme Court has held as under:--
"6. This Court in Meharaj Singh (L/Nk.) v. State of U.P. held that FIR in a criminal case and particularly in a murder case, is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used as also the names of the eyewitnesses, if known to the informant. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought.
Sending the copy of the special report to the Magistrate as required under Section 157 of the Criminal Procedure Code is the only external check on the working of the police agency, imposed by law which is required to be strictly followed. The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the court on guard to find out as to whether the version as stated in the court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime. (Emphasis supplied). Immediate sending of the report mentioned in Section 157 CrPC is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. Insisting upon the accused to seek an explanation of the delay is not the requirement of law. (Emphasis supplied). It is always for the prosecution to explain such a delay and if tendered, no adverse inference can be drawn against it.
In the instant case, the copy of the report referred to in Section 157 CrPC is shown to have been received by the Magistrate on 27-8-1991. Even though there is a mention in the FIR that its copy was sent through special messenger, yet no date or time of sending the said report is mentioned. The Magistrate, receiving the copy of the report, has also not noted the time of its receipt on 27-8-1991. We are of the opinion that the Magistrate receiving reports under Section 157 CrPC, particularly when it relates to the commission of the heinous crime are required to note not only the date but also the time of the receipt of the copy thereof. Mr. B.B. Singh, learned counsel appearing for the State has pointed out the existence of various circumstances which may perhaps be the cause of delay in sending the copy of the report and its receipt by the Magistrate but surely there is a difference between the "may be" and "must be". The prosecution has apparently failed to explain the delay in sending the copy of the said report in terms of Section 157 CrPC to the Magistrate of the area. This aspect has been highlighted by the learned counsel for the appellant to contend that many of the accused were innocent and wrongly roped in the case allegedly on account of enmity existing between the complainant and the accused party. There is some substance in such a submission."
Thus, we are of the view that it is incumbent for us in the facts and circumstances of the present case to sift the grain from the chaff and ensure that no innocent person suffer because of blemish in the prosecution case.
Consequently, we shall extend the benefit of doubt to accused-appellant Billu against whom only allegation is of exhortation and Balvant Singh father of main accused Bittu @ Manjeet Singh who allegedly also ran in the race.
Hence, as a matter of abundant caution, we extend the benefit of doubt to the accused-appellants Balvant Singh and Billu Singh and set aside judgment of conviction and sentence qua them by acquitting them of the charges. However, we maintain the conviction and sentence of accused-appellant Bittu @ Manjeet Singh.
The appeal stands disposed of in above terms.