Satish And Ors vs State Of Rajasthan

This appeal has been preferred against the order dated 04.02.2015, passed by the Additional Session Judge, Bandikui, Camp Mahwa, District Dausa in Sessions Case No. 67/2011. Appellants have been convicted and sentenced as under :-

Appellants Satish and Kamar Singh were convicted for the offence under Section 302 IPC and sentenced to life imprisonment with fine of Rs. 10,000/-, in default to make payment of fine, to further undergo 6 months Simple Imprisonment.

For the offence under Section 308/34 IPC, they have been convicted and sentenced for five years Simple Imprisonment with fine of Rs. 5,000/- in default to make payment of fine, to further undergo three months S.I.

For the offence under Section 3/25 Arms Act, they have been convicted and sentenced for one year's Simple Imprisonment with fine of Rs. 3000/-, in default to make payment of fine, to further undergo one month Simple Imprisonment.

They have been acquitted of the offence under Sections 341, 323, 324 and 307 IPC.

Accused- Babu Singh has been convicted for the offence under Section 302/34 IPC and sentenced to Life Imprisonment with fine of Rs. 10,000/- (Rs. Ten Thousand), in default to make payment of fine, to further undergo Six Months Simple Imprisonment. For the offence under Section 308 IPC, he has been convicted and sentenced to five years Simple Imprisonment with fine of Rs. 5000/-, in default to make payment of fine, to further undergo three months Simple Imprisonment.

BRIEF FACTS OF THE CASE :-

Complainant Samay Singh gave a written report to Police Station, Mahwa on 24.04.2011 alleging that at around 1:00 p.m. his wife Kaushalya and Bhabhi Keshanta were going to their agricultural field to collect fire wood. While they were on their way, accused Satish and Babu Singh along with Kamar Singh and others came and opened fire on them. The complainant's wife and Bhabhi sustained injuries out of fire arm. The injuries by fire arm has been assigned to accused Satish and Kamar Singh while injury by sharp edged weapon "farsa" has been assigned to Babu Singh.

The allegation against Babu Singh is to cause injury to Keshanta resulting amputation of finger.

Based on the written report (Ex.P-1), Police registered an FIR bearing No. 199/2011 for the offence under Sections 147, 148, 149, 341, 323 and 307 IPC. Injured- Keshanta died thereupon, thus, offence under Section 302 IPC apart from Section 3/25 of the Arms Act was added. The police filed charge-sheet against all the three accused after completion of investigation.

The trial Court framed charges against the appellants Satish and Kamar Singh for offence under Sections 341, 323, 324, 307, 307/34, 302, 302/34 IPC and under Section 3/25 of the Arms Act and against Babu Singh, offence under Sections 341, 323, 324, 307, 307/34, 302, 302/34 IPC. The charges were explained to the accused and when they denied it, trial commenced.

The prosecution produced twenty two witnesses apart from thirty six documents to prove their case. The statements of accused were recorded under Section 313 Cr.P.C. In defence, they produced eight documents. The trial Court, after marshaling the evidence, convicted and sentenced the accused appellants as detailed out earlier.

ARGUMENTS OF THE APPELLANTS:-

Learned counsel for the appellants submits that occurrence took place at the instance of the complainant. They came at the place where Satish was available and caused grievous injuries to him by a sharp edged weapon. Accused Satish acted in self-defence. A twelve bore gun kept by Satish was tried to be snatched by the complainant and, in that process, fire opened resulting in injuries to the complainant party. The gun was broken.

Its "butt" was recovered from the place of occurrence itself.

The accused- Satish was having twelve bore gun as he was apprehensive against the complainant party. It is due to previous rivalry where an FIR was lodged by complainant party few days before the occurrence. They were searching him to settle the score. Accused- Satish was not available and came in village only a day before the occurrence. It could be noticed by the complainant party, thus, to take revenge, they came to the place where accused- Satish was taking bath. It was on a tube-well in the agricultural field of Kishori Meena. In view of the above, accused- Satish acted in self-defence.

It is also stated that there was no reason for the complainant party to come at the place where Satish was taking bath. As per statement of PW-1- Samay Singh, complainant party was going to collect fire wood from their agricultural field. There was no reason for them to come on the agricultural field of others.

In view of the above also, complainant party was aggressor and came to teach a lesson to accused- Satish, who said to have caused injury previously to the complainant party by a fire arm, followed by an FIR. The complainant party, being aggressor, a right of self-defence came into play to the appellant.

The recovery of arm is also doubtful. PW-7- Dinesh Kumar has shown the recovery of weapon from the place of occurrence itself, which is not possible and otherwise in the site map for recovery of arms, two bundles have been shown at that place whereas they are missing in the site map of the place of occurrence. As such, the recovery of weapon from accused becomes doubtful, yet relied by the trial Court.

An argument has also been made that only one arm was used in the occurrence instead of two as alleged by the complainant. The statement of PW-15- Dr. Deepali Pathak has been referred to show that injuries sustained by the deceased can be caused by one fire. All the injuries to the deceased were on one side.

In view of the above, implication of two accused for opening fire on deceased becomes false yet ignored by the trial Court. The reference of the statement of PW-22 Jaishankar Badgujar, Investigating Officer has been given to support their argument.

According to the Investigating Officer, only one fire arm was used in the occurrence thus trial Court should not have convicted more than one accused for the occurrence.

Two weapons i.e. a twelve bore katta and twelve bore gun were recovered from Satish and Kamar Singh, while only one empty cartridge was recovered. It again proves that only one fire was opened in the occurrence because other cartridge recovered by the prosecution was not empty. The reference of statement of PW-14- Mohar Singh has been given for the aforesaid.

Accordingly, prayer for interference in the order of trial Court has been made even on the aforesaid ground.

The trial Court has otherwise ignored the statements of Babu Singh and Kamar Singh made under Section 313 Cr.P.C. They were not present at the place of occurrence along with Satish.

They came when heard the noise of Satish on the injuries caused by the complainant party. In view of the above, only Satish was available at the place of occurrence and, to take revenge, complainant party caused number of injuries to him by sharp edged weapon. The reference of his medical report, Ex.D-7 has been given to prove it.

It is also stated that pre-meditation to cause occurrence has not been proved so as to convict Babu Singh and Kamar Singh with the aid of Section 34 IPC. They were not present at the place of occurrence, rather, came later. The common intention of the accused does not exist so as to convict them with the aid of Section 34 IPC. The prayer is accordingly to set aside the order passed by the trial Court so as to acquit the appellants of the offence.

ARGUMENTS OF PUBLIC PROSECUTOR AND COUNSEL FOR THE COMPLAINANT

Learned Public Prosecutor and counsel for the complainant have contested the arguments raised by the learned counsel for the appellants and prayed to maintain the order passed by the trial Court. The reference of the evidence led by the prosecution has been given to support the finding of the trial Court. To avoid repetition, we would consider the argument of learned Public Prosecutor and learned counsel for the complainant while dealing with the arguments raised by the learned counsel for the appellant.

We have considered rival submission of the parties and perused the record.

FINDING OF THE COURT:

The material on record shows that on a written report Ex.P/1 dated 24.4.2011, an FIR bearing No. 199/2011 (Ex.P/33) was registered for the offence under Section 147, 148, 149, 341, 323, 307 IPC. The addition of offence under Section 302 IPC and 3/25 of the Arms Act was made when deceased Keshanta died later on.

The police caused investigation and finding a case against accused appellant, submitted charge-sheet. The trial court thereupon framed charges which were denied by the accused thus, trial commenced.

The prosecution produced four eye-witnesses apart from two injured witnesses to support their case. PW/2 Kabool is an eye- witness and stated that Keshanta, Kaushaliya and Harkesh were going to their field to collect fire-wood. At around 11-12 AM, Satish, Kamar Singh, Babu and Uganta came and opened fire on Kaushaliya, Keshanta and Harkesh. Satish was having 12-bore katta whereas Kamar Singh was having 12-bore gun. The accused Babu Singh was having a "Pharsa", whereas, Uganta, an Axe.

Kaushaliya, Kesanta and Harkesh tried to save themselves, and for that, ran towards hut of Johari Meena. At that stage, Satish opened fire at Keshanta which caused injury at her neck. Kamar Singh thereupon opened fire on Kesanta which caused injury on her hand. Babu caused injury to Harkesh by "Pharsa" on his head and another injury on his hand. Kaushaliya was beaten by accused by a lathi and even caused injury by an axe. The injured and deceased were immediately taken to hospital at Jaipur.

Keshanta died on the way.

The said witness has proved site plan Ex.P/2 apart from recovery of smeared soil by memo Ex. Ex.P/5. The witness has even proved recovery memo of Katta, Ex.P/7. It was recovered on the disclosure of Satish. He has even proved Ex.P/8 site plan for recovery of Katta apart from recovery memo of cartridges, Ex.P/9.

He was cross-examined by the appellants but his statement could not be demolished.

The statement of PW/2 Kabool has been corroborated by eye-witness PW/8 Aarami. He has also stated that at around 12 o'clock, he was with his brother, saw the incident where Satish having a Katta, Kamar Singh a gun and Babu with a "Pharsa" apart from Uganta with an axe caused injuries to Kaushaliya and Kesanta. They came to save Kaushaliya and Kesanta. Satish and Kamar Singh opened fire while Babu and Uganta caused blow by "Pharsa" and axe to the injured and deceased. His statement apart from statement of PW/2 Kabool have been corroborated by PW/9 Lahari and PW/10 Chhota.

Apart from eye-witnesses, PW/6 Harkesh, an injured witness, has also proved the prosecution case. He has also made specific allegation for opening fire by Satish and Kamar Singh having a Katta and a gun, respectively. The allegation against Babu and Uganta is for causing injuries to deceased and injured by a "Pharsa" and axe. The witness has corroborated the statement of other witnesses.

PW/11 Kaushaliya is again an injured witness and supported the prosecution case. In view of the above, six witnesses have given corroborative evidence to prove the prosecution case. Specific allegations are against Satish and Kamar Singh for opening fire and for Babu, using a "Pharsa". PW/1 Samaysingh has also corroborated the evidence but he is not an eye-witness The prosecution case has been supported by recovery of weapons on the disclosure of accused. Ex. P/7 is recovery memo of Katta on the disclosure of Satish whereas Ex.P/25 is recovery memo of gun at the instance of Kamar Singh. The "Pharsa" was recovered at the instance of Babu. The recovery memo is Ex.P/14.

In the statements u/s 313 Cr.P.C., the accused have not given defence about recovery of weapons though, learned counsel for the appellants has raised doubt about the recovery. It is due to recovery of weapon from the place of occurrence. The site map of recovery shows two bundles which were not shown in site map of the scene of occurrence.

We find no substance in the aforesaid argument because site map for recovery of weapon Ex.P/2, it is not of the same place where occurrence took place but is from the agricultural field of Johari Meena. Same is the position of Ex.P/8, site plan for recovery of weapon at the instance of Satish for recovery of weapon shows two bundles while it does not exist in the site plan of the occurrence, as recovery is made from the agricultural field of Johari Meena. The site plan has not been doubted by the appellants. The smeared soil was also recovered from the scene of occurrence. In view of the above, the prosecution could produce corroborative evidence in the form of recovery of weapons on the disclosure of accused.

The prosecution has further produced Medical Report and Post Mortem Report to prove their case. The MLRs, Ex.P/20, P/21 and P/22 have been proved in evidence. The MLRs corroborate the prosecution case. It shows injuries out of fire arm as well as from sharp edged weapon. The post mortem report shows injuries on both the sides of body as the injury on the neck is available on both the sides. The injury to the deceased corroborates use of fire-arm. The injured has also received a cut injury and by blunt weapon. The cut injury resulted in amputation of finger. Thus, participation of all the three accused with the use of weapon gets corroboration.

The two fire-arms recovered at the instance of accused were serviceable as per Ex.P/17, proved by PW/14 Moharsingh, Armourer. Duration of fire has not been indicated but the FSL report Ex.P/35 and P/36 proves use of 12-bore Katta and Gun.

Forteen dead pallets recovered from person of the deceased were also sent for FSL and as per the report, it have been fired from 12-bore ammunitions. Thus, the aforesaid is again corroborative evidence to prove the prosecution case. The FSL report is quoted hereunder for ready reference:

Fourteen damaged lead pellets from packets `A', `B' & `C' are normally used in 12-bore ammunition. These damaged lead pallets appear to have been fired from 12-bore firearm(s).

The learned counsel for the appellants, however, made an issue in reference to statement of PW/14 Moharsingh and even FSL report Ex.P/35 and Ex. P/36. It is stated that only one empty cartridge was recovered. This proves the use of only one firearm.

The argument aforesaid cannot be accepted by us. It is not only in reference to MLR and PMR of the deceased but also the FSL report and report by Armourer. Both the weapons were found serviceable and used for fire thus, merely for the reason that one empty cartridge could be recovered, it cannot prove use of one firearm.

Accordingly, we are unable to accept use of only one fire arm in the occurrence. It is more so when the X-ray report along with PMR shows more than one fire arm injury and thereby the deceased received injuries on both sides of the neck apart from other injuries.

The reference of statement of PW/15 Dr. Dipali Pathak has been given in reference to the cross-examination. The possibility of injury out of one fire has not been ruled out by her. We find that the answer to the question in cross-examination was given on probabilities. When the corroborative evidence exists for more than one fire and also the arms, the statement of PW/15 Dr. Dipali Pathak, in her cross-examination, based on probabilities, cannot be accepted in favour of appellants.

The genesis of occurrence is again a relevant factor for the consideration. It is admitted by the prosecution as well as by the accused that prior to the occurrence, another occurrence took place where accused Satish opened fire on the complainant party.

A case was also registered and thereby Satish was trying to steer away, the accused came with common intention to cause the incident, otherwise, if the statement of accused Satish under Section 313 Cr.P.C is looked into, the presence of Kamar Singh and Babu Singh is proved with him.

The learned counsel for the appellants, however, made reference of the statement of accused Kamar Singh and Babu Singh under Section 313 Cr.P.C. to show that they came on the place of occurrence after hearing the noise of Satish. The statements aforesaid are not supported by any witness, thus corroborative evidence has not been produced. It is otherwise contrary to the statements of Satish. To establish the aforesaid, we have even gone through Ex.D/8, Parcha Bayan of the incident given by accused Satish.

Therein also, this has not been stated that Kamar Singh and Babu came subsequent to the incident with Satish. In view of the above, doubt about the presence of Kamar Singh and Babu Singh cannot be accepted so as to deny common intention of all the accused to cause incident. The learned trial Court has thus rightly convicted and sentenced the accused with the aid of Section 34 IPC.

The learned counsel for the appellants even raised an issue of self-defence. It was stated that accused Satish was taking bath in the field of Kishori Meena and, at that time, the complainant party attacked him. A cross FIR was registered at the instance of accused party but as informed, the complainant party has been acquitted in the cross-case for the offence under Section 326 IPC.

An appeal is said to have been filed before the Single Bench but it was withdrawn to file leave to appeal. Learned counsel for the appellants has admitted that, till date, the leave to appeal has not been filed though it is explained that it could not be filed in absence of signatures of the complainant therein.

The acquittal of the complainant in the cross-case is based on self-defence and once the trial court in other case has accepted self-defence of the complainant party, the same plea cannot be accepted in favour of accused in contradiction. The facts available on record otherwise do not suggest it. It gives out that accused herein were equipped with deadly weapons and caused the occurrence while the deceased and the injured were going to collect fire-wood. Accordingly, a case of self-defence in favour of appellants is not made out.

CONCLUSION

In view of the discussion made above, we do not find any merit in the appeal preferred by the appellants, rather, the prosecution could prove their case beyond reasonable doubt.

Hence, the appeal preferred by the appellants is dismissed. Sentence of appellant Babu Singh has been suspended and he is on bail. His bail bonds stand cancelled. The trial Court is directed to take steps to take him in custody to serve the remaining sentence.

A copy of this judgment along with record be sent to the trial Court forthwith.