Binder Singh S/o Gurcharan Singh vs State of Rajasthan

The instant cr. appeal has been filed by the accused

appellant Binder Singh S/o Gurcharan Singh under Section 374(2)

Cr.P.C. to assail the validity of the judgment dated 5.6.2008

passed by the learned Addl. District & Sessions Judge (FT) No.1,

Hanumangarh by which the learned trial court convicted the

accused appellant for offence under Section 302 IPC and passed the following sentence:

Under Section 302 IPC Life imprisonment with fine of Rs.5,000/- and in default of payment of fine to further undergo three months RI.

As per brief facts of the case, upon written complaint

(Ex.P/1) filed on 5.3.2006 by the PW--2 Mohd. Iqbal, real brother

of the deceased Surendra, FIR no.140/2006 was registered at

Police Station, Hanumangarh Town against the accused appellant.

In the FIR an allegation was levelled that today on 5.3.2006 at

about 7.00 pm, deceased Surendra come to his house and went

back at 8.30 pm informing that I am going to bus stand. The

deceased Surendra did not return till 10.00 pm, then upon asking,

the complainant went to the bus stand to search his brother

Surendra. When complainant reached at bus stand, 2-3 persons

came running from the inside of bus stand and informed him that

accused appellant Binder Singh is beating to Surendra and Babu.

The complainant immediately rushed inside the bus stand and saw

that accused appellant Binder S/o Gurcharan Singh was inflicting

blow upon Surendra and Bopy Kashyap by iron rod.

As per complainant, PW--1 Bopy Kashyap, brother of Babu

Kashyap was trying to convenience accused appellant Binder

Singh not to make quarrel and caused injury, but accused

appellant Binder Singh did not hear him and inflicted injuries upon

the heads of Surendra and Babu Kashyap both by iron road. Due

to those injuries, both the persons fell down on the ground, at

that time, Mukhiya S/o Murti Bihari, Jabardeen S/o Sadiq Khan,

Manoj Kumar, Billa S/o Ranga Ram Bill and Sanju S/o Kali Ram

came on spot and accused appellant Binder Singh run away from

the place of occurrence.

The aforesaid complaint was filed on spot by Mohd. Iqbal

(PW--2 ) at 11.50 pm, upon that complaint, FIR was registered at

12.15 pm by the SHO Police Station Hanumangarh. After

registration of the FIR, investigation was commenced, first of all

site plant (Ex.P/2) was prepared at 7.15 am on 6.3.2006 and

other proceedings i.e., detail condition of the body of deceased

Babu Kashyap was prepared vide Ex.P/3 and detail condition of

the body of deceased Surendra was recorded vide Ex.P/8 on

6.3.2006 on spot. The inquest reports were also prepared by the

investigating officer on site and, thereafter bodies of both the

deceased were taken to the hospital for post mortem where after

examination, the post mortem repots of deceased Babu Kashyap

(Ex.P/13) and of deceased Surendra (Ex.P/36) of deceased

Surendra were prepared and handed over to the investigating

officer by the medical jurist of Government Hospital,

Hanumangarh. The accused appellant Binder Singh was arrested

vide Ex.P/39 on 6.3.2006 in front of two witnesses namely

Bhagwan Das and Narendra at 6.00 pm. After arrest upon

information given by him, iron rod was recovered vide Ex.P/5 from

the house of the accused appellant on 8.3.2006. Similarly, the

cloths of the accused appellant were also recovered vide Ex.P/6 as

per his information. The recoveries were made in presence of

two witnesses Bapi Kashyap and Diwan Khan.

In the investigation, statements of all witnesses including

eye witnesses were recorded under Section 161 Cr.P.C. and after completion of investigation, charge-sheet was filed against the

accused appellant in the court of Addl. Chief Judicial Magistrate,

Hanumangarh from where case was committed to the court of

Sessions Judge, Hanumangarh for trial.

The learned Sessions Judge transferred the case for trial to

the court of Addl. District & Sessions Judge (FT) No.1,

Hanumangarh where trial was commenced.

In the trial, charge under Section 302 IPC was framed

against the accused appellant after providing an opportunity of

hearing by the learned trial court, but accused appellant denied

the charge and prayed for trial. In the trial, the statements of 11

prosecution witnesses were recorded and after recording

statement of prosecution witnesses, the learned trial court

proceeded to record the statement of accused appellant under

Section 313 Cr.P.C. In the statement accused appellant denied all

the charges levelled against him. The opportunity to lead evidence

in defence was granted to him, therefore, in defence four

witnesses DW-1 Pal Ram, DW-2 Balwant Singh, DW-3 Shiv Kumar

and DW-4 Sajjan Singh were produced.

The learned trial court after recording evidence of both the

side finally heard the arguments and convicted the accused

appellant and passed sentence for committing offence under

Section 302 IPC for life imprisonment alongwith fine of Rs.5,000/-

vide judgment dated 5.6.2008 passed in Sessions Case No.

137/2006 (31/2006). The said judgment is under challenge in this

appeal.

Learned counsel for the appellant submits that whole prosecution story is based upon testimony of eye witnesses, but

their statements cannot be relied upon because they are close

relatives of both the deceased. As per learned counsel for the

appellant the witness PW--1 Bopy Kashyap and PW--3 Sanju are

cousin brothers of deceased Babu Kashyap and author of FIR PW--

2 Mohd. Iqbal is the real brother of the deceased Surendra.

Similarly, PW--6 Jabbardeen is brother-in-law of deceased

Surendra and PW--4 Mukhiya is the owner of ice cream pallor

situated on the bus stand. All the witnesses are interested

witnesses, therefore their presence is seriously doubtful upon the

place of occurrence because as per prosecution case, occurrence

took place at 10.30 pm in the night, that too, at bus stand, which

is public place but none of the independent witnesses turned to

support the incident in which two young persons were killed on

the public place. Learned counsel for the appellant further

submits that according to the facts of prosecution story five

persons were present at the time of occurrence then why they did

not intervene to save both the deceased because they are alleging

that accused appellant inflicted injury by iron rod upon their heads

in presence of them, therefore, whole prosecution case is

doubtful.

Learned counsel for the appellant vehemently argued that

the story of prosecution is seriously doubtful, therefore, the

finding of the learned trial court based upon the testimony of so

called eye witnesses PW--1 Bopy Kashyap, PW--2 Mohd. Iqbal,

PW--3 Sanju, PW--4 Mukhiya and PW--6 Jabbardeen deserves to

be disbelieved. It is also pointed out that iron rod and blood

stained cloths of the accused appellant were recovered in front of

two witnesses PW--1 Bopy Kashyap and PW--5 Deewan Khan, but

both the witnesses are close relatives of the deceased Babu and

Surendra, therefore, it cannot be said that prosecution has proved

the recovery of blood stained iron rod and cloths of the accused

appellant on 8.3.2006 vide Ex.P/5 and P/6 respectively beyond

doubt. Learned counsel for the appellant submits that as per

statement of SHO Antar Singh (PW--11) when he reached on

spot, no one was present whereas all the eye witnesses stated

before the court that information was given by them to the police

and police came on spot after occurrence took place, at that time,

Binder Singh was not on spot. The crux of argument of learned

counsel for the appellant is that whole prosecution story is

doubtful because none of the eye witnesses is independent

witnesses, so also there is major contradiction in their statements

with regard to their presence on spot or upon the fact that who

came on spot first.

While inviting attention of this court towards four witnesses

produced as defence witnesses, DW-1 Pal Ram, DW-2 Balwant

Singh, DW-3 Shiv Kumar and DW-4 Sajjan Singh it is stated that

shops of all the four witnesses is situated at bus stand where they

are doing business, they categorically gave statements before the

court on oath that till 11''O clock no incident took place at bus

stand on 5.3.2006. Therefore, it is obvious that all the

independent witnesses of defence categorically stated on oath that

no incident took place till 11.00 pm in the night on 5.3.2006

whereas all the five eye witnesses of the prosecution stated before

the court that incident took place before 11''O Clock. In view of

the above evidence, whole prosecution story became doubtful

because time of incident and involvement of the accused appellant

has not been proved beyond reasonable doubt. Therefore, the

judgment impugned may kindly be quashed.

In the alternative, the learned counsel for the appellant

submit the even if the testimony of interested eye witnesses is

accepted then also finding of guilt recorded against the accused

appellant for offence under Section 302 IPC is not sustainable

because as per prosecution case, accused appellant inflicted one

injury each upon the heads of both the deceased Surendra and

Babu by iron rod and ran away, there is no evidence of motive,

therefore, in absence of pre-meditation and motive, finding of

conviction recorded by the learned trial court for offence under

Section 302 IPC is not sustainable in law and it can be altered to

offence under Section 304 Part I IPC. In support of his arguments,

learned counsel for the appellant invited our attention towards the

judgments in the case of Ahmed Shan & Anr. VS. State of

Rajasthan reporte din (2015) 3 SCC 93, PrabhkarVithal Gholve

Vs. State of Maharashtra reported in AIR 2016 SC 2292 and Poona

Vs. State of Rajasthan reported in 2016 (3) R.Cr.D. 136 (Raj) and

submits that as per the verdict of aforesaid judgments, the

conviction recorded against the accused appellant under Section

302 IPC may be converted to offence under Section 304 Part I IPC

and sentence may be reduced from life imprisonment to already

undergone.

Per contra, learned Public Prosecutor vehemently argued

that it is very serious case in which two persons namely Surendra

and Babu were killed on public place, which is bus stand, inflicting

injuries by iron road upon the head of both the injured. As per

prosecution case, five eye witnesses went on spot to search both

the deceased because they left the house in the evening while

saying that they are going to bus stand and did not come back to

their home upto 10''O Clock in the night at bus stand occurrence

took place in their presence. The evidence of eye witnesses

proved the case.

Learned Public Prosecutor argued that there is no strength in

the argument of learned counsel for the appellant that testimony

of theses witnesses cannot be relied upon for the reason that they

are close relative. In fact, their presence cannot be doubted for

the reason narrated by them in their statements on oath. All the

five eye witnesses categorically deposed in their statements

before the court that in front of them accused appellant inflicted

head injuries by iron rod to both the deceased Surendra and Babu.

It is true that there is no evidence of motive or intention of the

accused appellant to cause injuries, but at the same time, it is

required to be considered that upon iron rod and cloths of the

accused appellant blood was found and in FSL report although

group of blood was not ascertained, but it is specifically reported

that human blood was found upon the iron rod and cloths of the

accused appellant and cloths of the deceased and soil collected

from the site, therefore, finding of guilt recorded by the learned

trial court is based upon sound appreciation of evidence.

Learned Public Prosecutor submits that investigation was conducted fairly, on spot written complaint (Ex.P/1) was

submitted by the PW--2 Mohd. Iqbal at 11.50 pm on 5.3.2006,

the written complaint was sent through Constable Subhash

Chandra to the Police Station Hanumangarh where FIR

no.140/2006 was registered under Section 302 IPC against the

accused appellant. In the complaint specific allegations were

levelled by the eye witness PW--2 Mohd. Iqbal, before whom

incident took place and corroborated by the other trustworthy

witnesses, therefore, there is no question to disbelieve the

testimony of eye witnesses, which is relied upon by the learned

trial court so as to convict the accused appellant for offence under

Section 302 IPC.

Lastly, it is argued that upon assessment of evidence from

any angle it cannot be that it is a case of culpable homicide not

amounting to murder because as per seriousness of the incident,

it is a case of murder even in absence of evidence of motive,

therefore, this appeal may kindly be dismissed. In support of his

arguments, learned Public Prosecutor invited our attention

towards the judgments in the case of Vinay Kumar Rai & Anr. Vs.

State of Bihar reported in 2008 Cri.L.J. 4319, State of A.P. Vs. S.

Rajappa & Ors., reported in 2006 Cri. L.J. 1616, Dr. C.S.

Nagalakshmamma Vs. State of Karnataka reported in 2008 Cri.

L.J. (NOC) 333 (KAR.) D. Shailu Vs. State of Andhra Pradesh

reported in 2008 Cri. L.J. 686, Gali Venkataiah Vs. State of

Andhra Pradesh reported in 2008 Cri. L.J. 690 and Ujjagar Singh

Vs. State of Punjab reported in 2008 Cri. L.J. 808.

After hearing the learned counsel for the parties, we have

perused the evidence and finding of the learned trial court, upon

which the learned trial court held accused appellant guilty under

Section 302 IPC. It is admitted fact that PW--1 Bopy Kashyap and

PW--3 Sanjay are cousin brothers of deceased Babu, but after

perusal of their statements, their testimony cannot be disbelieved

because these witnesses specifically said that occurrence took

place in front of them, admittedly witness PW--1 Bopy Kashyap

went on spot and tried to convince the accused appellant not to

make any quarrel but while giving threat to witness PW--1 Bopy

Kashyap, accused appellant inflicted injury by rod upon heads of

both the deceased.

We have perused the statements of PW--2 Mohd. Iqbal,

author of FIR. The said witness categorically deposed in his

statement that he went on spot to search his brother Surendra

because his brother did not returned back till 10''O Clock from bus

stand, the said witness reached at bus stand and he saw that 2-3

persons came running from inside the bus sand, they asked

witness PW--2 Mohd. Iqbal that Binder Singh is beating Surendra

inside the bus stand, when this witness entered in the bus stand,

he saw that PW--1 Bopy Kashyap was trying to convince accused

appellant Binder Singh to not to make quarrel and cause injury to

Surendra and Babu. Meaning thereby, the witness PW--2 Mohd.

Iqbal has proved the incident on oath because he was present

when occurrence took place.

PW--3 Sanju though is close relative of deceased Babu, but

the said witness categorically stated before the court on oath that

accused appellant was having iron rod in his hand and I and Kali

made all efforts to restrain him to inflict injury but Binder Singh

run behind them to cause injury and, thereafter, inflicted injuries

by iron road upon the heads of deceased Babu and Surendra at

bus stand, which resulted into death on spot.

PW--4 Mukhiya is the independent business doing business

at bus stand. The said witness categorically supported prosecution

case. PW--6 Jabbardeen though is brother-in-law of deceased

Surendra but upon perusal of his statement, his testimony cannot

be disbelieved because he is supporting the allegation of all the

eye witnesses and he was also present when occurrence took

place.

With regard to recovery of iron road and cloths, we have

perused the recovery memo (Ex.P/5 and P/6). The recoveries of

iron rod and blood stained cloths of the accused appellant at the

instance of accused has been proved because recoveries were

made in front of two witnesses PW--1 Bopy Kashyap and PW--5

Deewan Khan, so also, investigating officer PW--11 Antar Singh all

the three witnesses said on oath that these articles were

recovered in their presence. The recovered articles, iron rod and

blood stained cloths were sent for examination to the FSL and vide

Ex.P/42 it is reported by the FSL on 8.6.2006 that human blood

was found upon all the articles. Meaning thereby, the presence of

blood upon all the articles including iron rod and cloths of the

accused appellant and both the deceased loudly speaks that

accused appellant Binder Singh inflicted injuries upon the head of

both the deceased by iron rod, due to those injuries both the

injured died on spot.

In view of the above discussion, we have no hesitation to

hold that no error has been committed by the learned trial court

so as to accept the testimony of all the witnesses including eye

witnesses and recovery of articles so as to accept the prosecution

case.

We have considered the alternate prayer made by the

learned counsel for the appellant to convert the conviction from

offence under Section 302 IPC to Section 304 Part I IPC in the

light of all the judgments cited by the learned counsel for the

appellant.

It is true that in view of the few judgments cited by the

learned counsel for the appellant in absence of evidence of

motive, offence can be converted from offence under Section 302

IPC to Section 304 Part I IPC, but in the present case, heavy iron

rod (Ex.P/5) which is said to be used by the accused appellant to

cause injuries has been recovered at the instance of the accused

appellant the prayer to alter the finding of guilt cannot be

accepted due to nature of injuries caused to two persons.

PW--10 Dr. Jaspal who has performed the post mortem of

both the deceased gave following opinion in Ex.P/35 and P/36 for

cause of death of both the deceased, which reads as under :

"Ex.P/35:

In my opinion the cause of death is due to injury to vital organs like brain tissues causes hemorrhage, shock leads to death. Injury no.1 is sufficient to cause death in ordinary course of nature of life. All injuries are anti mortem in nature and caused by heavy blunt object."

"Ex.P/36:

In my opinion the cause of death is due to injury to vital organs like brain tissues causes hemorrhage, shock leads to death. Injury no.1 is sufficient to cause death in ordinary course of nature of life. Injuries are by blunt heavy object. All injuries injury are anti mortem in nature."

After perusing the aforesaid opinions given by the doctor in

the post mortem report coupled with the evidence of eye

witnesses, we are of the opinion that intention of the accused

appellant can be gathered from the serious injuries caused

forcefully by iron rod, which resulted into death. It is true that in

absence of motive, if occurrence took place in spur of moment and

all of sudden, in which deceased died then conviction for offence

under Section 302 IPC can be converted to offence under Section

304 Part I IPC, but in this case, prosecution has proved the

occurrence in which accused appellant inflicted serious injuries by

iron rod upon two young boys, that too, upon their heads which is

vital part of the body and due to those injuries deceased Surendra

and Babu fell down on ground of bus stand and died. We have

perused the photographs of dead body taken from place of

occurrence. In our opinion, intention to commit offence of murder

is obvious, therefore, even though there is no specific evidence of

motive on record, but we are not inclined to accept the prayer of

the accused appellant to convert the conviction from offence

under Section 302 IPC to Section 304 Part I IPC because it is a

case in which due to inhuman and cruel act of the accused

appellant two young persons died, therefore, this appeal lacks

merit.

In view of the above discussion, the instant appeal filed by

the accused appellant is hereby dismissed.