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Judgment
In this cr. appeal filed by the appellants under Section 374
Cr.P.C., the judgment dated 20.11.2012 passed by the learned
Addl. Sessions Judge, Shahpura, District Bhilwara in Sessions
Case No.12/2010 is under challenge whereby the learned trial
court convicted the accused appellant Devendra Singh for the
offence under Section 302 IPC and under Section 30 of the Arms
Act whereas the two other accused appellants Hanuman Singh
and Manvendra Singh convicted for offence under Section 302 / 34
IPC and following sentence was passed against them:
Accused appellant Devendra Singh:
Under Section 302 IPC Life imprisonment with fine of Rs.5,000/- and in default of payment of fine to further undergo six months RI.
Under Section 30 of the Arms Act Six months RI with fine of Rs.2,000/- with fine of Rs.2,000/- and in default of payment of fine to further undergo one month RI.
Accused appellants Hanuman Singh and Manvendra Singh:
Under Section 302 / 34 IPC Life imprisonment with fine of Rs.5,000/- and in default of payment of fine to further undergo six months RI
As per facts of the case, report (Ex.P/26) was submitted by
the complainant Vishwanath Pratap Singh before the SHO Police
Station, Fuliyakallan at the place of occurrence on 1.45 pm in
which it was alleged that on 18.6.2010 his brother Maniraj Singh
and Kamlesh Sharma went to see their agricultural field,
thereafter, complainant alongwith PW--2 Hansraj, PW--3 Anil and
PW--8 Chhotu Lal also went to the agricultural field for handing
over the land for cultivation on contract (Sijara). When they
reached on spot, the accused appellant Devendra Singh,
Hanuman Singh and Manvendra Singh were already cultivating
their field by tractor. The accused appellant Hanuman Singh was
driving tractor and two other accused appellants Devendra Singh
and Manvendra Singh were sitting on the tractor. According to
the allegation of the complainant, Devendra Singh was having
double barrel gun and they gave threatening to Maniraj Singh
''how you entered in the field, now you will not alive''. While
saying so, accused appellant Devendra Singh fired on Maniraj
Sing, which hit right side of his chest and due to said gun shot
injury Maniraj Singh fell down. The other person Kamlesh Sharma
run away from the site, but accused appellants followed him and
again Devendra Singh made fired upon Kamlesh Sharma and
therefore, Kamlesh Sharma also fell down and died on spot. As
per submission of complainant he is eye witness of the incident.
Thereafter, all the accused persons run away from the place of
occurrence.
Upon aforesaid report submitted by the complainant
Vishwanath Pratap Singh, FIR no.73/2010 for offence under
Section 302 / 34 IPC and under Section 3 / 27 of the Arms Act was
registered against the accused appellant and investigation was
commenced. The investigating officer after conducting thorough
investigation filed charge-sheet against the accused appellants in
the court of Addl. Chief Judicial Magistrate, Shahpura, District
Bhilwara from where case was committed to the court of Addl.
Sessions Judge, Shahpura, District Bhilwara for trial.
The learned trial court commenced the trial in Sessions Case
No.12/2010. In the trial after hearing arguments charge under
Section 302 IPC and under Section 3 / 27 of the Arms Act were
framed against the accused appellant Devendra Singh whereas
charge under Section 302 / 34 IPC was framed against the accused
appellants Hanuman Singh and Manvendra Singh, but all the
accused appellants denied the charges and prayed for trial.
In the trial, statements of 25 prosecution witnesses were
recorded from the side of prosecution to prove the case and
thereafter, the statements of all the three accused appellants were
recorded under Section 313 Cr.P.C, but they denied all the
allegations levelled by the prosecution witnesses and said that
they have been falsely implicated in this case due to enmity. In
defence, no evidence was produced by them and finally after
hearing arguments, the learned trial court convicted the accused
appellants Devendra Singh for committing offence under Section
302 IPC read with Section 30 of the Arms Act whereas other two
accused appellants Hanuman Singh and Manvendra Singh were
convicted for the offence under Section 302 / 34 IPC vide judgment
dated 20.11.2012.
Learned counsel for the appellant submits that the entire
prosecution case is based upon testimony of four eye witnesses
including PW--2 Hansraj, PW--3 Anil, PW--8 Chhotu Lal and the
complainant PW--16 Vishwanath Pratap Singh, out of all the four
witnesses, three witnesses namely PW--2 Hansraj, PW--3 Anil,
PW--8 Chhotu Lal whose names are mentioned in the complaint
by the complainant Vishwanath Pratap Singh turned hostile and
did not support the prosecution case whereas the witness PW--16
Vishwanath Pratap Singh corroborated the allegation. The other
witness PW--11 Brijraj Singh is hear say witness. The two other
witness PW--21 Prahlad of recovery of tractor and site plan,
turned hostile. PW--24 Ramjas witness of recovery memo of gun
and site plan (Ex.P/34) also turned hostile and did not support the
prosecution case, therefore, prosecution has not been proved the
allegation of murder beyond reasonable doubt.
Learned counsel for the appellants argued that the learned
trial court disbelieved the evidence for prosecution for murder of
Kamlesh Sharma while discussing the entire evidence and no
appeal has been filed by the State of Rajasthan against the said
finding, therefore, there is no question to re-appreciate the
evidence for the allegation of murder of Kamlesh Sharma in the
present case.
As per learned counsel for the appellant, the recovery of gun
and tractor has not been proved beyond doubt because witness of
recovery PW--24 Ramjas turned hostile and did not support the
prosecution case. It is also argued that PW--16 Vishwanath
Pratap Singh, author of the FIR was not present on spot at the
time of alleged incident because he came on spot after the
incident. While inviting attention towards the statement of PW--16
Vishwanath Pratap Singh it is submitted that the said witness
specifically stated that report (Ex.P/26) was dictated by the
police, upon which I put my signature, therefore, on this count
alone, FIR seems to be concocted and false. The statement of
PW--16 Vishwanath Pratap Singh has not been corroborated by
any eye witness whose names were disclosed by him because
PW--2 Hansraj, PW--3 Anil, PW--8 Chhotu Lal turned hostile,
therefore, obviously the entire prosecution case is based upon the
testimony upon sole eye witness PW--16 Vishwanath Pratap
Singh. The presence of the witness PW--16 Vishwanath Pratap
Singh is doubtful, therefore it cannot be said that he is natural
witness. While inviting attention towards the statement of PW--16
Vishwanath Pratap Singh that the FIR (Ex.P/26) and Ex.D/1 police
statement recorded under Section 161 Cr.P.C. it is submitted that
there are major contradictions in the statement of PW--16
Vishwanath Pratap Singh. It is also argued that there is major
contradiction in the statement of PW--11 Brijraj Singh, father of
the deceased and PW--16 Vishwanath Pratap Singh on material
issues, therefore, the testimony of both the witnesses cannot be
relied upon to hold accused appellants guilty. Admittedly, the
complainant party came on spot alongwith number of persons, at
that time, the accused party was already cultivating their land,
therefore, obviously it is a case in which occurrence took place
due to quarrel made by the complainant party. In view of the
above, the conviction of the accused appellant Devendra Singh
under Section 302 IPC is not sustainable in law.
With regard to conviction of accused appellants Hanuman
Singh and Manvendra Singh under Section 302 / 34 IPC it is
submitted that as per Section 34 of the IPC criminal act
(consisting of a series of acts) should have been done, not by
one person, but more than one person. Further doing of every
such individual act cumulatively resulting in the commission of
criminal offence should have been in furtherance of the common
intention of all such accused persons, but in this case, accused
appellants were already cultivating their land by tractor prior to
incident where deceased Maniraj Singh and Kamlesh Sharma
came on spot where accused appellant were in field. It is also
evident from the fact disclosed in FIR (Ex.P/26) that complainant
himself disclosed the fact that all the three accused persons asked
to the complainant party ''how they came in the agricultural field,
now you will not be alive'', therefore, there is no iota of evidence
to convict accused appellants Hanuman Singh and Manvendra
Singh for offence under Section 302 / 34 IPC. It is also argued that
testimony of PW--16 Vishwanath Pratap Singh is not supported by
any other reliable witness who was present at the time of
occurrence, therefore, conviction of the appellants deserves to be
quashed.
Without prejudice to above arguments, it is submitted that if
this court comes to the conclusion that incident is proved then
also there is no question to hold Devendra Singh guilty for offence
under Section 302 IPC because before complainant party went on
spot the accused appellants were already cultivating their land,
which is undivided property of both the parties. As per evidence
on record even if the entire evidence is accepted then also the
accused appellant Devendra Singh can be held guilty for offence
under Section 304 Part I IPC and not for offence under Section
302 IPC simplicitor.
Learned counsel for the appellants submits that there is no
allegation for inflicting any injury by two other accused appellants
Hanuman Singh and Manvendra Singh to the deceased, so also,
there is no allegation of prosecution that these accused appellants
came on spot with the motive or intention to make quarrel, more
so, all the three accused appellants were already cultivating their
agricultural field situated in Khasra No.938, so also, there is no
allegation for participating in the incident or inflicting any injury by
the accused appellant Hanuman Singh and Manvendra Singh,
therefore obviously Section 34 IPC will not apply in this case so as
to hold them guilty for offence under Section 302 IPC with aid of
Section 34 IPC. Therefore, it is prayed that sentence awarded to
the accused appellant Devendra Singh for offene under Section
302 IPC may kindly be altered to offence under Section 304 Part I
IPC.
Per contra learned Public Prosecutor vehemently argued that
there is no error in the finding of the learned trial court to convict
the accused appellants for offence under Section 302 and 302 / 34
IPC because there is evidence of eye witness PW--16 Vishwanath
Pratap Singh who was very much present when occurrence took
place. The FIR was also registered upon his complaint (Ex.P/26)
in which whole incident was reported by the complainant eye
witness PW--16 Vishwanath Pratap Singh. Learned Public
Prosecutor submits that although the other eye witnesses PW--2
Hansraj, PW--3 Anil and PW--8 Chhotu Lal turned hostile, but
there is no reason to disbelieve the testimony of PW--16
Vishwanath Pratap Singh because the said witness stated on oath
that on 18.6.2010 in the morning at about 7-8 am I, and my
brother Maniraj Singh and Kamlesh Sharma, we all three left
Shahpura and went to village. At about 9.30 am we reached in the
house of our village ant at about 10'' O Clock Maniraj Singh and
Kamlesh Sharma went to the agricultural field to see the work of
cultivation. According to this witness at about 11.15 - 11.30 am
one Hansraj Jat, Anil Jat and Chhotu Balai came to his house and
said that we have received phone call from your father, therefore,
to take your land for cultivation on contract basis (Sijara) we aer
hear to see the land. I asked the above persons that my brother
Maniraj Singh and Kamlesh Sharma has already gone agricultural
field, therefore, you may also go there so that they will show you
the land.
According to this witness, the Hansraj said that your
agricultural field is very big, how we will search them, you may
come with us. Upon asking I went on spot on my own motorcycle
and all the three persons Hansraj, Anil and Chhotu Lal
accompanied me upon their motorcycle. All the persons reached in
the agricultural field at about 12''O Clock and after showing land to
the aforesaid persons, we came back near to the motorcycle. It is
also pointed out land in question is joint property where Hanuman
Singh and Manvendar Singh were doing their work for cultivating
the land. The accused appellant Devendra Singh gave threatening,
''how you came in the field, now you will face consequence'', and
thereafter, fired by the gun which he was having in his possession
upon Maniraj Singh, at that time, to save me I immediately ran
away and I jumped in the pit and hide in the bushes (Jhadi). The
other person Kamlesh Sharma also run away from the place of
occurrence, but all the accused persons chased him on tractor
driven by the accused Hanuman Singh and Kamlesh Sharma was
hit by tractor and fell down and all of sudden accused appellant
Devendra Singh fired upon him. The said incident was seen by
me when I was sitting behind the bushes (Jhadi). After inflicting
gun shot injuries, Devendra Singh and Hanuman Singh went to
the village Aamli Kalu Singh on tractor. Thereafter, I came out
from bushes and call my brother. All incident was reported by me
through phone of Hansraj and informed that accused appellant
caused gun shot injuries to Maniraj Singh and Kamlesh Sharma.
The contention of the learned Public Prosecutor is that the
eye witness PW--16 Vishwanath Pratap Singh has proved its case
beyond doubt, therefore, upon sole testimony of this witness, the
learned trial court held accused appellants guilty for offence under
Section 302 and 302 / 34 IPC in which there is no error. The gun
was also recovered at the instance of the accused appellant
Devendra Singh and as per FSL report it is proved that gun shot
injury was caused by the said gun recovered as per information
given by the accused appellant Devendra Singh.
Learned trial court accepted the prosecution case on the
ground that although eye witness PW--2 Hansraj, PW--3 Anil and
PW--8 Chhotu Lal turned hostile and did not support the
prosecution case, but there is no reason to disbelieve the
testimony of PW--16 Vishwanath Pratap Singh because he was
very much present on spot because land in question is joint
property of the accused appellants as well as complainant family.
In view of the above, it is submitted that conviction based upon
sole and reliable testimony of eye witness PW--16 Vishwanath
Pratap Singh cannot be termed as illegal or erroneous because
his presence has not been disputed by the appellants. Therefore,
the instant appeal may kindly be dismissed.
After hearing learned counsel for the parties we have
minutely perused the statements of all the prosecution witnesses
to decide the case. After perusing the judgment impugned
coupled with the evidence and argument of learned counsel for
the appellants it emerges from the facts that following facts are
not in dispute.
A. Admittedly all the three accused appellants were already
cultivating their land situated in Khasra No.938. The
complainant PW--16 Vishwanath Pratap Singh, PW--2
Hansraj, PW--3 Anil and PW--8 Chhotu Lal and deceased
Maniraj Singh and Kamlesh Sharma went on spot. It is also
admitted position of the prosecution case that all
complainant and his brother went on spot to show the land
to the alleged eye witnesses PW--2 Hansraj, PW--3 Anil and
PW--8 Chhotu Lal because they were interested to take the
land for cultivation on contract.
B. It is not in dispute that the land upon which occurrence took
place is a joint undivided property of the accused appellant
as well as of the complainant party, situated at Khasra
No.938 and 939 of the village. It is also not in dispute that
as per prosecution case allegation for causing gun shot
injury is against accused appellant Devendra Singh only.
There is no allegation for inflicting any injury by other two
accused appellants Manvendar Singh and Hanuman Singh, it
is also admitted fact that appellants were already cultivating
land before reaching of PW--16 Vishwanath Pratap Singh and
other persons including two deceased persons.
C. It is not in dispute that gun shot injury was caused by the
gun, which is said to be recovered vide Ex.P/33 during
investigation. It is true that one of the witness of recovery
PW--24 Ramjas declared hostile but recovery of gun has
been proved by the prosecution. Upon perusal of finding
given by the learned trial court it is obvious that allegation
for causing death of Kamlesh Sharma has not been proved
by the prosecution because the injury which is found upon
the body of Kamlesh Sharma was different than the injury
which can be caused from the gun recovered as per
information given by the accused appellant Devendra Singh.
The learned trial court gave finding that prosecution has
failed to prove its case for murder of Kamlesh Sharma but
has proved the allegation for causing gun shot injury to the
deceased Maniraj Singh. There is no appeal against the
finding of the learned trial court to disbelieve the allegation
for committing murder of Kamlesh Sharma. The learned trial
court held accused appellants are guilty for committing
offence of murder of Maniraj Singh only.
D. It is also admitted position of the case that those named
eye witness in the FIR (Ex.P/26) namely PW--3 Anil, PW--3
Anil and PW--8 Chhotu Lal turned hostile and did not
support the prosecution case, but author of FIR PW--16
Vishwanath Pratap Singh proved its case for causing gun
shot injury to the deceased Maniraj Singh. The other witness
PW--5 Dr. Heerapal, PW--6 HS Dr. H.S. Sahwal and PW--12
Dr. Ashok Kumar Jain who were member of the medical
board to conduct post mortem of Maniraj Singh and of
Kailash Sharma was conducted by them but the witness
Prahald (PW--21) of recovery memo of tractor (Ex.P/31) and
site plan (Ex.P/32) turned hostile. The other witness PW--24
Ramjas motbir of recovery memo of gun (Ex.P/23 and P/24)
and site plan turned hostile and did not support the recovery
of gun as per information given by the accused appellant
Devendra Singh. The investigation was conducted by PW--25
Surajbhan Singh, he has supported the prosecution case
with regard to alleged offence of murder.
The above facts and evidence loudly speaks that accused
appellants were already present in the agricultural field situated in
Khasra No.938 and 939, they were not aggressor. The deceased
Maniraj Singh and Kamlesh Sharma went first on spot and after
some time PW--16 Vishwanath Pratap Singh and other three
witnesses PW--2 Hansraj, PW--3 Anil and PW--8 Chhotu Lal
reached on spot at 12.30 but all the three eye witnesses PW--2
Hansraj, PW--3 Anil and PW--8 Chhotu Lal turned hostile and not
corroborated the allegation of PW--16 Vishwanath Pratap Singh
but it emerges from the entire evidence and finding of the learned
trial court that appellants were not aggressor, more so, they were
already cultivating their share of land upon tractor when
complainant party went in the field. It is also admitted fact of the
case that there is no allegation of inflicting any injury by two
accused appellants Hanuman Singh who was tractor driver and
Manvendar Singh. No weapon has been recovered from them nor
any allegation is levelled against them for inflicting any injury by
the eye witness PW--16 Vishwanath Pratap Singh. So also it is one
of the important fact that except statement of PW--16 Vishwanath
Pratap Singh no other witness has proved the allegation that two
accused appellants Manvendar Singh and Hanuman Singh participated in the crime for causing death of the deceased
Maniraj Singh.
In our opinion, the testimony of PW--16 Vishwanath Pratap
Singh has wrongly been relied by the learned trial court so as to
hold accused appellants Manvendar Singh and Hanuman Singh
guilty for the offence under Section 302 / 34 IPC, therefore finding
of the learned trial court recorded against them cannot be upheld
because upon assessment of evidence Section 34 of the IPC will
not apply in this case for want of evidence. The Section 34 of the
IPC reads as under:
Acts done by several persons in furtherance of common intention.--When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.]
We have considered the entire evidence of the case in the
light of Section 34 of the IPC. In our view, except PW--16
Vishwanath Pratap Singh there is no eye witness or other witness
to prove participation of these two accused appellants Manvendar
Singh and Hanuman Singh in the incident. All the three eye
witnesses turned hostile and did not support the allegation
levelled by the witness PW--16 Vishwanath Pratap Singh against
these two accused appellants. Therefore, the finding of guilt
recorded by the learned trial court to hold accused appellants
Manvendar Singh and Hanuman Singh for offence under Section
302 / 34 IPC does not inspire any confidence.
In our opinion, upon re-appreciation of the entire evidence,
the finding of guilt recorded by the learned trial court against the
accused appellants Manvendar Singh and Hanuman Singh cannot
be ruled out because there is no allegation for inflicting any injury
by them and other allegations made by PW--16 Vishwanath
Pratap Singh has not been corroborated by any independent
witness. Therefore, both the accused appellants are entitled for
the benefit of doubt.
With regard to finding against the accused appellant
Devendra Singh we have considered the allegations of PW--16
Vishwanath Pratap Singh so also medical evidence and FSL report.
There is no question to disbelieve the medical evidence so also
FSL report coupled with the fact that gun in question was
recovered at the instance of the accused appellant Devendra
Singh. The presence of Devendra Singh has not been disputed by
the learned counsel for the accused appellant, more so it is argued
that upon appreciation of the entire evidence no offence under
Section 302 IPC is made out against him because complainant
party went on spot for specific purpose to give land on contract to
three persons namely, Anil, Hansraj and Chhotu Lal. When
complainant party alongwith PW--16 Vishwanath Pratap Singh and
deceased Maniraj Singh and Kamlesh Sharma reached, accused
appellants were already cultivating their land on tractor.
Therefore, obviously it cannot be said that they were having any
apprehension or they were having any common object to commit
offence of murder. The occurrence took place when complainant
party entered in agricultural field, which is joint property of the
family.
Admittedly, from complainant side, six persons went on spot including PW--16 Vishwanath Pratap Singh, deceased Maniraj
Singh and Kamlesh Sharma, Anil, Hansraj and Chhotu Lal whereas
all the three appellants were already cultivating their land and out
of three accused appellants Devendra Singh was having gun in his
possession which is used by him in the incident. Admittedly,
Maniraj Singh died due to injury caused by accused appellant
Devendra Singh but prosecution failed to proves it case against
accused appellant for committing murder of Kamlesh Sharma.
Therefore, the learned trial court disbelieved the entire evidence
against the accused appellant for committing murder of Kamlesh
Sharma.
In view of the fact that six persons went on spot and there
was no preparation or common intention of the appellants to
cause death of the deceased, but it emerges from the entire
evidence that quarrel took place in the agricultural field situated in
Khasra No.938 and 939 and in that quarrel Devendra Singh
inflicted gun shot injury, which resulted into death of deceased
Maniraj Singh. In our opinion, there is no strength in the
argument of the learned counsel for the appellant that there was
no intention of the accused appellant Devendra Singh to cause
death of the deceased because he fired by gun with target and
due to the said injury, the deceased Maniraj Singh died.
In view of the above, we are of the opinion that although
prosecution has not proved the case against accused appellant
Manvendar Singh and Hanuman Singh beyond reasonable doubt,
but has proved the case against accused appellant Devendra
Singh for committing offence under Section 302 IPC.
There is no strength in the argument of the learned counsel
for the appellants that incident took place all of sudden or due to
quarrel occurred on spot the gun shot injury was caused by the
accused appellant Devendra Singh and he was already present in
the agricultural field but it is not in dispute that he was in
possession of gun which is used by him for causing gun shot
injury to the deceased. Therefore, we are not inclined to accept
the prayer of the accused appellant Devendra Singh to alter the
conviction from Section 302 IPC to offence under Section 304 Part
I IPC.
Consequently, the instant cr. appeal is partly allowed. The
conviction and sentence of the accused appellants Manvendar
Singh and Hanuman Singh for the offence under Section 302 / 34
IPC passed by the learned Addl. Sessions Judge, Shahpura District
Bhilwara vide judgment dated 20.11.2012 in Sessions Case
no.12/2010 is hereby quashed and set aside but the conviction
and sentence of the accused appellant Devendra Singh for
committing offence under Section 302 IPC and under Section 30
of the Arms Act is hereby upheld and his appeal against the
judgment dated 20.11.2012 is hereby dismissed.
The accused appellants Manvendra Singh and Hanuman
Singh are in custody since 28.7.2010, therefore, they may be
released forthwith, if not required in any other case.