Nadar Singh and Others vs State of Rajasthan

K.S. Lodha, J.—The learned Addl. Sessions Judge No. 1, Hanumangarh, by his judgment dated 30th June, 1983 convicted the appellants and sentenced them as follows:

(1) Nadar Singh u/s 302/34, IPC Imprisonment for life ;

(2) Kashmir Singh

(3) Jangir Singh u/s 364, IPC Sentenced to 7 years'' RI and fine of Rs. 1000/-, in default of payment of fine six month''s RI; u/s 201, IPC Sentenced to 3 years'' RI and fine of Rs. 500/-, in default of payment of fine 3 month''s RI;

(4) Satmam Singh u/s 364, IPC Sentenced to 3 year''s RI and fine of Rs. 1000/- in default six month''s RI; u/s 336, IPC Sentenced to one month''s RI; u/s 27, Arms Act Sentenced to 2 year''s RI.

Aggrieved of these convictions and sentences, these appellants have come up in appeal.

We have heard the learned Counsel for the appellant and the learned P.P. as also the learned Counsel for the complainant and have gone through the record.

So far as the convictions of the appellants, Nadar Singh, Kashmir Singh and Jangir Singh, under Sections 364 and 201, IPC are concerned and those of Satnam Singh under Sections 364, 336, IPC and Section 27, Arms Act are concerned, they have not been challenged before us. How ever, so far as Satnam Singh is concerned, the only contention of the learned Counsel for the appellants was that he had been on bail & had served out almost 1-1/2 year''s RI therefore, he need not be sent back to jail but his substantive sentences may be reduced to that already undergone. So tar as the other appellants are concerned his contention is that accepting the prosecution story as such, these appellants could not have been convicted u/s 302/34, IPC and their case shall fall under a lesser offence.

In view of the limited contention raised before us, we may briefly state the prosecution story.

It is the case of the prosecution that on 24-11-1981, the deceased Nanak Singh had got some illicit liquor recovered from the possession of Kala Singh s/o Nadar Singh accused. After the police party had gone away after affecting the recovery, Nand Singh, Nanak Singh, Maluka Singh and Balbir Singh were sitting in the ''Kotha'' of Balbir Singh and gossiping; at about 10.30 p.m Nanak Singh had gone out to easy himself and there the accused persons Nadar Singh, Satram Singh, Kashmir Singh and Jangir Singh accompained by four other persons, who were not then named in the First Information Report but later were named as Pritam Singh, Amar Singh and another Kashmir Singh s/o Kartar Singh and Bachan Singh had belaboured Nanak Singh and had carried him away. On hearing the hue and cry Nand Singh, Maluka Singh Balbir Singh etc. came out of Kotha and went in pursuit of the accused persons but Satnam Singh, who was holding a pistol fired at them and threatened them not to pursue the accused persons. These witnesses, bow ever, were not hit by the pistol fire. The accused persons are said to have taken the deceased Nanak Singh upto the house of Rati Ram upto which these witnesses except Maluka Singh and one more witness Surayan Singh, who joined later, followed them but being challenged by Satnam Singh by firing the pistol at them, they did not follow the accused persons further and they said that Nanak Singh was further being carried toward the ''Bhatta'' out side the village. Maluka Singh of course, followed them stealtlily upto some more distance. Then Nand Singh came and informed Dilawar Singh father of Nanak Singh of this incident and Dilawar Singh lodged a report before the Police. The accused Nadar Singh was arrested on 26.11.1981 and in'' pursuance of the information given by him on that very day. the dead body of Nanak Singh was recovered. The other accused appellants were later arrested on 24-12-1981. The post-mortem examination of the deceased Nanak Singh was carried out by Dr. Narendra Singh, PW 1 and he found the following injuries on his person:

(1) Abrasion 3/4" x 1/8" Rt. shoulder post;

(2) Bruise 2" x 1/4" back in middle:

(3) Bruise 3/4" x 1/4" back in middle;

(4) Bruise 5" x 2" Lt. side of back lumber area;

(5) Bruise with abrasion 3/4" X 1/2" Rt. gluteal area;

(6) Abrasion 1/4" x 1/4" Rt. gluteal area;

(7) Bruise present around the anal opening Anal opening wide open 3/4" X 1/2" Blood stains present around anal opening;

(8) Incised wound 1/2" x 1/8" X 1/4" lat. side of Rt. eye;

(9) Incised wound 1/2" x 1/8" x 1/4" chin Rt. side;

(10) Abrasion 3/4" x 1" Rt. cheek area;

(11) Abrasion 2" x 1" Rt. cheek area;

(12) Abrasion 1" x 2" in front of Rt. ear;

(13) Abrasion 1/2" x 1/4" Lt. cheek;

(14) Abrasion 1/2" x 1/4" Lt. cheek;

(15) Abrasion 1-1/2" X 1/2 in front of Lt. ear;

(16) Abrasion 1/2" X 1/2" near Lt. iliac crest;

(17) Abrasion 3/4" x 3/4" Lt. wrist area ant;

(18) Abrasion 1" x 1/2" Lt. wrist area post;

(19) Abrasion 1/2" wide around Rt. wrist area (Both wrists were tied with a rope);

(20) Bruise 3" x 3/8" Rt. side of neck middle multiple bruises & abrasion size ranging from 1/8" x 1/8" to 4/4" X 1/4" present on neck in front and lateral sides.

According to the doctor, the cause of death was strangulation. He, when examined in court, stated that no injury, except injury No. 20 of injuries on the body of Nanak Singh were sufficient, individually or collectively to cause death, in the ordinary course of nature.

Out of the accused persons, accused Nadar Singh was having a Lathi, Satnam Singh had a pistol and a ''Salia'', Kashmir Singh s/o Mala Singh had a Lathi according to some witnesses and ''gandasa'' according to some others, so also is the case of Jangir Singh.

After usual investigations, the four appellants along with four other accused named above were challaned and committed and on trial these four appellants were convicted and sentenced as aforesaid, where as, Pritam Singh, Amar Singh, Kashmir Singh s/o Kartar Singh and Bachan Singh were acquitted of all the charges.

Now only two questions arise for our consideration. So far as the accused Satnam Singh is concerned, he has been sentenced to three years'' RI u/s 364, IPC and 2 years RI u/s 27, Arms Act. His conviction is not challenged before us and only prayer for reduction of the sentence had been made. He had been arrested on 24-12-1981 but was later released on bail by this Court on 3-8-1983 and has thus undergone about 1-1/2 years RI. The incident is of the year 1981. More than 8 1/2 years have already passed, therefore, at this stage we do not think it proper or necessary to send him back to jail for serving but the remaining part of the sentence specially when although he is said to be armed with a pistol and Saila, he did not cause any injury either to the deceased or the any of the witnesses with these weapons. Dr. Narendra Singh had specifically stated that none of the injuries on the person of the deceased could be caused by a Saila. Therefore, we are of the opinion that his substantive sentence may be reduced to that already undergone by him and in lieu of reduction a suitable fine may be further imposed.

So far as the other accused persons are concerned, the question is whether they have rightly been convicted u/s 302 read with Section 34, IPC and we are clearly of the opinion that in the circumstances of the case, the appellants other than Satnam Singh could not have been convicted u/s 302 read with Section 34, IPC. In this connection, it may be pointed out that if the intention of the accused persons was to cause the death of Nanak Singh, they could have easily put their intention into practice by causing injuries to him with the pistol which Satnam Singh was holding or they could also have caused fatal injuries with help of the sharp edged weapon like Saila Gandasa, which some of the accused persons are said to be holding. The motive of the accused persons for abducting Nanak Singh, therefore, could not be to murder him but they can certainly be said to have had the intention of abducting or kidnapping him in order to so dispose of him as to put him in danger of being murder specially when we find that cause of the incident was that it was Nanak Singh who had got the illicit liquor recovered from the possession of Kala Singh s/o Nadar Singh. For such an act of Nanak Singh, the accused must not necessarily have intended to cause his death. We need not dwell upon the matter any further since the conviction u/s 364 has not been challenged before us but it ma be said in the circumstances of the case that the accused cannot be attributed the intention of causing the death of Nanak Singh. They can also not be attributed common intention of causing such bodily injury as was sufficient in the ordinary course of nature to cause death. Because if that was the intention as already stated above the lethal weapons would certainly have been used It does appear that at the spur of moment some one of them may have taken it into his mind to strangulate Nanak Singh but from the prosecution''s evidence it is not at all established as to who that particular person out of the accused was and on that basis also they cannot be held guilty u/s 302 read with Section 34, IPC. It, of course, appears from the number and the nature of the injuries caused to the deceased that the accused had the knowledge that their act was likely to cause death because as many as 20 injuries were inflicted on the person of the deceased Nanak Singh including an injury to his rectum which according to the doctor must have been resulting of penetration of some hard object. Then it also appears that injuries has been caused to his gluteal area also and in these circumstances they can properly be convicted u/s 304, Part-II, IPC, as each one of them must be held to have shared the common knowledge of causing such injuries as were likely to cause death without any intention to cause death or to cause such bodily injury as is likely to cause death.

The appeal is, therefore, partly allowed. The conviction of the appellants Nadar Singh, Kashmir Singh s/o Mala Singh and Jangir Singh s/o Mala Singh under Sections 364 and 201, IPC and the sentence passed in respect thereof were maintained but their convictions u/s 302 read with Section 34, IPC and the sentences passed there are set aside instead they are convicted u/s 304, Part-II, IPC and sentenced to seven years'' RI. The substantive sentences awarded to them shall run concurrently. Satnam Singh''s convictions under Sections 364, 336,IPC and Section 27, Arms Act are maintained so also the sentences awarded u/s 336, IPC but his sentences u/s 364, IPC is reduced to the term already undergone by him and in lieu of the reduction of sentence he is further sentenced to a fine of Rs. 1,000/- over and above the amount of fine already imposed by the learned Additional Sessions Judge. The fine will thus come to Rs. 2,000/- in all. In default of payment of fine, he will undergo nine months'' RI. The sentence u/s 27, Arms Act is also reduced to that already undergone. All the substantive sentences shall be concurrent. Satnam is on bail. He is granted two months time to pay up the fine. He need not, therefore, immediately surrender.