REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs. 552-554 OF 2003
State of Rajasthan .... Appellant(s)
Versus
Arjun Singh & Ors. etc. .... Respondent(s)
WITH
CRIMINAL APPEAL NOs. 555-557 OF 2003
AND
CRIMINAL APPEAL NO. 558 OF 2003
J U D G M E N T
P.Sathasivam,J.
1) These appeals are filed against the common final
judgment and order dated 26.04.2002 passed by the High
Court of Judicature for Rajasthan, Jaipur Bench, Jaipur in
D.B. Criminal Appeal Nos. 504, 533 and 673 of 1995 whereby
the High Court disposed of the appeals acquitting Karan
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Singh, Laxman Raigar, Bahadur Singh, Smt. Swaroop Bai,
Smt. Gyan Kanwar and Smt. Bhagwan Kanwar of all the
charges and altered the conviction and sentence of Shivraj
Singh, Banney Singh and Arjun Singh from Sections 302/149
IPC and 307/149 IPC to Section 302/34 and 307/34 IPC
passed by the trial Court.
2) Brief facts:
(a) On 24.12.1991, at about 09:30 a.m., an information was
received by the In-charge, Police Out-post Anwa that cross
firing had taken place between the Rajputs of that village.
After recording the said information in Rojnamcha (Ex. P31),
immediately the police proceeded towards the spot and
recorded Parchabayan of injured Himmat Raj Singh (Ex. P32)
at about 11.40 a.m. It was stated by Himmat Raj Singh (since
deceased) that at 9.30 a.m., when he was standing outside his
house, Arjun Singh fired at him from a muzzle loaded gun
from the roof of Karan Singh thereby 2-3 bullets hit him on
the left hand and another 2-3 hit his abdomen and left thigh.
On hearing his cries, two of his brothers, namely, Raghuraj
Singh (since deceased) and Raj Singh (PW-2) came there and
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took him inside the house and after leaving him there, when
they were going to inform the police at Police out-post, Anwa,
Bheem Singh and Gajender Singh (who are now absconding),
Banney Singh, Karan Singh and Shivraj Singh fired gunshots
at them, as a result of which, both of them received injuries.
Thereafter, accused Bahadur Singh came with a gandassa.
The other accused, Laxman Raigar also jumped into their
house. It was also stated that Smt. Swaroop Bai, Smt. Gyan
Kanwar and Smt. Bhagwan Kanwar were also present on the
roof of Karan Singh and they tried to kill the other family
members of the deceased with deadly weapons.
(b) The moment Raghuraj Singh and Raj Singh (PW-2)
received injuries, Roop Singh, their father immediately rushed
to the Police Out-post to inform the Police about the incident.
The police officials reached at the spot and on the basis of the
statement of Himmat Raj Singh, a First Information Report (in
short `the FIR') being No. 228/1991 was registered against the
accused persons for the offences punishable under Sections
307, 147, 148 and 149 IPC. The injured persons, Raghuraj
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Singh, Himmat Raj Singh, Dhiraj Raj Singh and Raj Singh
were taken to the M.B.S. Hospital at Kota for treatment.
(c) Shri Ajay Kumar Gupta, (PW-18), Munsif and Judicial
Magistrate (North), Kota recorded the statements of Himmat
Raj Singh and Raj Singh (PW-2). Since Raghuraj Singh was
not medically fit to make a statement, his statement was not
recorded. On the same day, Raghuraj Singh died in the
Hospital, therefore, offence punishable under Section 302 IPC
was added. On 29.01.1992, Himmat Raj Singh also died in
the Hospital. After due investigation, the police submitted
four charge sheets at different stages against Arjun Singh,
Banney Singh, Shivraj Singh, Bahadur Singh, Smt. Swaroop
Bai, Smt. Gyan Kanwar, Smt. Bhagwan Kanwar, Karan Singh
and Laxman Raigar.
(d) On 07.09.1995, the Additional Sessions Judge, Kota,
after examining 30 prosecution witnesses and 8 defence
witnesses convicted Karan Singh under Sections 148,
302/149, 307/149 IPC and Section 3/27 of the Arms Act,
1959, Shivraj Singh, Banney Singh and Arjun Singh under
Sections 148, 302/149, 307/149 IPC and Smt. Swaroop Bai,
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Smt. Gyan Kanwar, Smt. Bhagwan Kanwar, Laxman Raigar
and Bahadur Singh under Sections 148, 302/149, 307/149
and 452 IPC and sentenced all of them to undergo rigorous
imprisonment.
(e) Aggrieved by the judgment of the trial Court, Arjun
Singh, Banney Singh, Shivraj Singh, Bahadur Singh, Smt.
Swaroop Bai, Smt. Gyan Kanwar and Smt. Bhagwan Kanwar
filed D.B. Criminal Appeal No. 504 of 1995, Laxman Raigar
filed D.B. Criminal Appeal No. 673 of 1995, Karan Singh filed
D.B. Criminal Appeal No. 533 of 1995 and Roop Singh-the
complainant, filed D.B. Criminal Revision Petition No. 250 of
1996 before the High Court of Judicature for Rajasthan,
Jaipur Bench at Jaipur.
(f) On 26.04.2002, the High Court, by a common impugned
judgment, set aside the order of conviction and sentence
passed by the trial Judge against Karan Singh, Laxman
Raigar, Bahadur Singh, Smt. Swaroop Bai, Smt. Gyan Kanwar
and Smt. Bhagwan Kanwar and acquitted them of all the
charges. As regards Arjun Singh, Banney Singh and Shivraj
Singh, their conviction and sentences under Sections 302/149
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and 307/149 IPC were altered to Sections 302/34 and 307/34
IPC.
(g) Against the acquitted persons, the State of Rajasthan
filed Criminal Appeal Nos. 552-554 of 2003, Raj Singh, son of
the Complainant-Roop Singh, who died during the pendency of
the case, filed Criminal Appeal Nos. 555-557 of 2003. Against
the order of conviction and sentence, accused Arjun Singh,
Banney Singh and Shivraj Singh filed Criminal Appeal No. 558
of 2003 before this Court by way of special leave petitions.
3) Heard Mr. S.R. Bajwa, learned senior counsel for the
convicted appellants, Dr. Manish Singhvi, learned Additional
Advocate General for the State of Rajasthan and Ms.
Aishwarya Bhatti, learned counsel for the son of the
complainant.
Issues for consideration:
4) The question for consideration in these appeals is
whether the High Court was justified in acquitting Bahadur
Singh, Laxman Raigar, Karan Singh, Smt Swaroop Bai, Smt
Gyan Kanwar and Smt Bhagwan Kanwar and also altering the
conviction from 302/149 and 307/149 IPC to Sections 302/34
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and 307/34 insofar as Arjun Singh, Banney Singh and Shivraj
Singh.
5) Since the issues, allegations and overt acts are inter-
connected, let us consider all the available materials and
ascertain whether the prosecution had established its case as
initiated at the first instance.
Discussion:
6) As mentioned earlier, on 24.12.1991, at about 09:30
a.m., all the accused gathered on the roof of Karan Singh.
Accused- Arjun Singh fired at Himmat Raj Singh (since
deceased) from the roof of Karan Singh from a capped gun
thereby few bullets hit the deceased on the left hand and
another 2-3 hit his abdomen and left thigh. On hearing his
cries, brothers of the deceased, Raghuraj Singh and Raj Singh
(PW-2) came there and took injured Himmat Raj Singh inside
their house and after leaving him there, when both of them
were going to police out-post to lodge a complaint, at that
time, Bheem Singh, Gajendra Singh, Banney Singh, Karan
Singh and Shivraj Singh fired on them resulting in the death
of Raghuraj Singh. Other accused Bahadur Singh, Laxman
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Raigar, Smt Swaroop Bai, Smt. Gyan Kanwar and Smt
Bhagwan Kanwar were also present on the roof of Karan Singh
and they tried to kill other family members with deadly
weapons. It is also the claim of the prosecution that the
accused persons attempted on the life of Dhiraj Raj Singh - the
brother of the deceased. The injured persons, namely,
Raghuraj Singh, Himmat Raj Singh, Raj Singh and Dhiraj Raj
Singh were taken to Kota Hospital. Raghuraj Singh died on
the same day and Himmat Raj Singh died on 29.01.1992 in
the hospital, however, Raj Singh survived. According to the
High Court, there is complete consistency and credible
evidence as far as three accused persons, namely, Arjun
Singh, Banney Singh and Shivraj Singh are concerned,
however, in respect of other six, there is no direct evidence and
the case pleaded by the prosecution is unacceptable and
acquitted them of all the charges.
7) The prosecution examined as many as 30 witnesses in
support of its case. In the statements recorded under Section
313 of the Code of Criminal Procedure, 1973 (hereinafter
called as "the Code"), all the accused denied the prosecution
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evidence and informed the Court that they were falsely
implicated. In addition to their statements, 8 witnesses were
examined in their defence.
8) Before considering the evidence of eye-witnesses, let us
analyse the evidence of the Dr. Manmohan Sharma (PW-1),
Medical Jurist in M.B.S. Hospital, Kota, who examined
Raghuraj Singh, Himmat Raj Singh and Raj Singh on
24.12.1991 and Dhiraj Raj Singh on 28.12.1991. The injuries
noted by Dr. Manmohan Sharma (PW-1) in Exs. P1-P4 are
relevant, they are as follows:-
"Raghuraj Singh (Ex. P1)
1. Gunshot wound 1/2" x 3/4" oval with inverted margins
blackening and tattooing on left shoulder outside.
2. Gunshot wound 3/4" x 1/2" oval with blackening on outer
side lt. iliac crust posteriolateral aspect upper quadrant of lt.
buttock.
3. Gunshot wound 1/2" x 1/2" on lt. lip 4" medial to No. 1.
4. Gunshot wound 1/4" x 3/4" upper quadrant of lt. buttock
5" below No. 1.
5. Gun shot wound 1/2" x 3/4", 2" medial to No. 1 on lt.
buttock.
6. Gunshot wound 1/3" x 1/3" on sacral gorder of lt.
buttock 3" away from middle.
7. Gun shot wound 1/3" x 1/3" 1" below No. 6, 3 & 1/2"
away from middle.
8. Gun shot wound 1/3" x 1/3" 1/2" below No. 6, 3 & 2"
away from middle.
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Himmat Raj Singh (Ex. P2)
1. Gun shot wound 1/2" x 1/2 circular with inverted margin
with blackish.
2. Gun shot wound 1/2" x 3/4" oval with blackening on the
side of the abdomen.
3. Gun shot wound 3/4" x 3/4" oval iliac with blackening.
4. Gun shot wound 1/2" x 1/2" circular on left arm upper
outer side with bleeding.
5. Gun shot wound 1/2" x 3/4" oval 2" below slight medial to
forearm.
6. Gun shot wound 1/2" x 3/4" oval with inverted margin on
left forearm innerside.
7. Gun shot wound 1/2" x 1/2" on the left hand.
Raj Singh (Ex. P4)
1. Eight gun shot wounds about 1/2" x 1/2" size to 1" x 3/4"
scattered in front of left thigh blackening tattooing margin
inverted.
Dhiraj Raj (Ex. P3)
1. Contusion 2" x 1" abrasion on left arm.
2. Contusion 3" x 1 and 1/2" with abrasion on left forearm.
3. Lacerated wound 1" x 1/3" x 1/3" abdomen right side
outside in auxiliary 3" below knee joint."
9) With reference to the specific question about the injuries,
Dr. Manmohan Sharma (PW-1) has explained to the Court that
all the injuries referred to above were caused by gun shots. It
was further revealed that Raj Singh had also sustained
injuries. It is seen from the X-ray Report (Ex.P5) that Raj
Singh had fracture of femur bone and according to Dr.
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Manmohan Sharma (PW-1), the injuries were serious in
nature. He also opined that the injuries of Himmat Raj Singh
and Raghuraj Singh were sufficient to cause death in the
ordinary course of nature. In his evidence, he also explained
that the death of Himmat Raj Singh was caused due to
septicemia shock as a result of multiple ante-mortem injuries
to abdomen. With reference to a suggestion, PW-1 had denied
that blackening and tattooing marks can be possible only
when gun shots were fired from a distance of 3 or 4 feet. In
respect of the same, Dr. Sharma, (PW-1), explained in detail in
his cross-examination that the same marks are possible even
in the case of gun shots which are fired from a distance of
more than 3 or 4 feet and it depends upon the nature of gun,
gun powder, cartridges etc. Raj Singh, (PW-2), in his evidence,
has stated that the accused Arjun Singh was standing on the
roof of the house of Karan Singh and fired from muzzle loaded
gun at Himmat Raj Singh. Though there is little discrepancy
as to the distance from the upper portion of the house and the
actual scene of occurrence, it cannot be concluded that the
injuries on Raghuraj Singh, Himmat Raj Singh and Raj Singh
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were not caused by fire arms. In this regard, it is relevant to
point out the description of injuries as noted by Dr. Sharma
(PW-1) in Exs. P1-P4 which we have extracted earlier. In
addition to the same, it is seen from the evidence of PW-1 that
the blackening marks found around the wounds and the dead
body confirmed that the deceased were within a distance of 6
feet from the assailants when they received the injuries.
10) Learned senior counsel for the accused persons
contended that in the absence of recovery of pellets from the
scene of occurrence or from the body of the injured persons, it
is highly doubtful as to the scene of occurrence and whether
such incident did take place in the manner suggested by the
prosecution. Learned counsel appearing for the complainant
pointed out that though there was an entry in Malkhana
Register (Ex. P31A) wherein it was stated that a sealed packet
containing pellets was deposited but prosecution failed to lead
any evidence on this point. It was also pointed out that
though a report was received from the Forensic Science
Laboratory, no evidence regarding recovery of the pellets was
produced. As rightly pointed out by the learned Additional
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Advocate General appearing for the State that mere non-
recovery of pistol or cartridge does not detract the case of the
prosecution where clinching and direct evidence is acceptable.
Likewise, absence of evidence regarding recovery of used
pellets, blood stained clothes etc. cannot be taken or
construed as no such occurrence had taken place. As a
matter of fact, we have already pointed out that the gun shot
injuries tallied with medical evidence. It is also seen that
Raghuraj Singh and Himmat Raj Singh, who had died,
received 8 and 7 gun shot wounds respectively while Raj Singh
(PW-2) also received 8 gun shots scattered in front of left thigh.
All these injuries have been noted by the Doctor (PW-1) in his
reports Exs. P1-P4.
11) If we analyze the evidence of Dr. Manmohan Sharma
(PW-1), his reports, Exs.P1-P4 and the evidence of Raj Singh
(PW-2), it leads to a conclusion that gun shot injuries tallied
with the medical evidence and both the deceased persons died
due to the same reason. Similar conclusion arrived at by the
High Court cannot be doubted.
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12) Coming to the contention relating to the motive, it is not
in dispute that Raghuraj Singh and Himmat Raj Singh died
due to gun shot injuries. The reliable eye-witnesses have
stated that there was previous enmity between them and
litigation was going on between the accused-Karan Singh and
the complainant. Even in the absence of motive, in view of the
assertion of eye-witnesses, particularly, Raj Singh, (PW-2),
coupled with the medical evidence as seen from Exs. P1-P4, by
the Doctor (PW-1), the case of the prosecution cannot be
thrown out. In a catena of decisions, this Court has held that
motive for doing a criminal act is generally a difficult area for
the prosecution to prove since one cannot normally be seen
into the mind of another. Motive is the emotion which impels
a man to do a particular act. Even in the absence of specific
evidence as to motive, in view of the fact that in the case on
hand, two persons have been killed and one sustained injuries
due to fire arms, the case of the prosecution cannot be thrown
out on this ground.
13) Now, let us consider the oral evidence led in by the
prosecution. We have already pointed out that though the
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prosecution has examined as many as 30 witnesses, they
heavily relied only on 6 witnesses and out of these, Raj Singh
(PW-2), Dhiraj Raj Singh (PW-3) and Brij Raj Singh (PW-4) are
brothers, Roop Singh (PW-6) is their father and Durga
Shankar (PW-5) and Satya Narain (PW-9) were working as
labourers in the house of Roop Singh at the time of
occurrence. It is true that the names of PWs 3, 4 and 6 were
not mentioned either in parchabayan (Ex. P32) or in the
statements, Exs. P22-23, recorded by the Judicial Magistrate,
(PW-18) on the day of the occurrence.
14) It was also pointed out that all the eye-witnesses,
particularly, PWs 3, 4 and 6 being brothers and father of the
deceased, they are interested in their version and no reliance
need to be placed on their statements. We are unable to
accept the said contention. This Court, in a series of
decisions, has held that the testimony of such eye-witnesses
should not be rejected merely because witnesses are related to
the deceased. This Court has held that their testimonies have
to be carefully analysed because of their relationship and if the
same are cogent and if there is no discrepancy, the same are
15
acceptable vide Abdul Rashid Abdul Rahiman Patel & Ors.
vs. State of Maharashtra (2007) 9 SCC 1. Likewise, minor
discrepancies in the evidence of eye-witnesses are also
immaterial. However, as rightly pointed out, if Dhiraj Raj
Singh (PW-3) had sustained some injuries, his name could
have been mentioned in Exs. P22, P23 and P32 which were
earliest versions. In those documents, the names of Raghuraj
Singh, who died on the same day and Himmat Raj Singh, who
died later and Raj Singh, who received gun shot injuries alone
were mentioned and none else. Another aspect, as rightly
pointed out is that when the injured persons were examined
by the Doctor on the same day, admittedly, PW-3 was
examined only on the fourth day of the incident and it was
seen that he did not receive any gun shot injury. Considering
all these aspects including the fact that there is no proof of
receiving gun shot injury to PW-3 and also taking note of the
fact that he was 13 years of age at the time of occurrence, as
rightly pointed out by the High Court, his presence itself is
doubtful.
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15) The remaining eye-witnesses, as per the prosecution
version, are PWs 2, 4 and 6. It was demonstrated before us by
the learned senior counsel for the accused that the names of
PWs 4 and 6 did not occur in parchabayan (Ex. P 32) as well
as in the statements (Exs. P22 and P23) recorded by Shri Ajay
Kumar Gupta, (PW-18), Judicial Magistrate, on the day of
occurence. The statement in Ex. P32 was recorded at 11:40
a.m. and the incident took place at about 09:30 a.m. Though
it was recorded within two hours, as rightly pointed out, while
mentioning the details of the occurrence, names of the
assailants, eye-witnesses, the presence of Dhiraj Raj Singh
(PW-3), Brij Raj Singh (PW-4) and Roop Singh (PW-6) was not
mentioned. We have already noted that even in Exs. P22-23,
the names of PWs 3, 4 and 6 were not noted and no
explanation has been offered for their absence. The
verification of those documents clearly show that only the
names of Raghuraj Singh and Himmat Raj Singh (both died
due to gun shot injuries) and Raj Singh (PW-2) who also
received gun shot injuries were noted and except these names,
none else was noted. Another important factor is that Himmat
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Raj Singh, Raghuraj Singh and Raj Singh (PW-2) alone were
medically examined on the same day whereas Dhiraj Raj Singh
(PW-3) was examined after 4 days of the incident and that too
by the very same Doctor (PW-1). There is no explanation at all
for non-examination of PW-3 by the Doctor along with other
injured witnesses. In these circumstances, as rightly observed
by the High Court, the presence of eye-witnesses, namely, PWs
3, 4 and 6 at the place of occurrence on the date and time as
pleaded by the prosecution is highly doubtful. We agree with
the said conclusion.
16) In the light of the above conclusion, the only witness
available to support the case of the prosecution is Raj Singh
(PW-2). Let us consider his evidentiary value and how far he
supported the case of the prosecution. Mr. Bajwa, learned
senior counsel for the accused, by pointing out certain
contradictions, submitted that it is not safe to convict the
accused based on his evidence. It is also pointed out that Raj
Singh (PW-2) is highly interested witness and closely related to
eye-witnesses. It was further pointed out that in the absence
of any neighbour, conviction based on the testimony of PW-2
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alone is not sustainable. In the light of the above
submissions, we have carefully scrutinized the evidence of PW-
2. First of all, merely because the witness is related to eye-
witnesses or the family of the deceased is not a ground for
rejection vide Kuldip Yadav vs. State of Bihar (2011) 5 SCC
324. It was also held that merely because the prosecution has
not examined neighbours, it cannot be claimed that it is fatal
to their case, when the evidence of eye-witnesses examined on
their side is found to be acceptable and reliable. Raj Singh,
(PW-2), in his evidence, in categorical terms has asserted that
he saw five to seven persons standing on the roof of the house
of Karan Singh. He had specifically mentioned the names of
those persons as Bahadur Singh, Shivraj Singh, Banney
Singh, Smt Swaroop Bai, Smt Gyan Kanwar, Smt Bhagwan
Kanwar, Gajendra Singh and Karan Singh. Inasmuch as in
the parchabayan (Ex. P32), only the name of Arjun Singh and
as per Ex. P22 the names of Arjun Singh and Banney Singh
was mentioned, who were present on the roof at the relevant
time, as rightly observed by the High Court, the claim of Raj
Singh (PW-2) that all the accused persons were standing on
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the roof is not believable, however, his assertion that two
persons Arjun Singh and Banney Singh were on the roof
cannot be denied. Even if we eschew certain portion from the
evidence of PW-2, his assertion and the statement regarding
the involvement of Arjun Singh, Shivraj Singh and Banney
Singh cannot be disputed. In categorical terms, he explained
the role played by these persons. It is clear from his evidence
that he received gun shot injuries which is also supported by
medical evidence. In view of the same, his presence at the
time of occurrence cannot be disputed and is found to be
proved. This is also strengthened from his statement in
parchabayan (Ex. P32) and Ex. P22 statement given to
Judicial Magistrate (PW-18). A perusal of Ex. P32 makes it
clear that it was Arjun Singh who first fired a gun shot at
Himmat Raj Singh and subsequently Bheem Singh, Gajendra
Singh (both absconding) Banney Singh and Shivraj Singh also
fired at Raghuraj Singh and Raj Singh causing injury to them.
Ex. P32 also clearly shows that there are specific allegations of
causing gun shot injuries against Shivraj Singh, Arjun Singh
and Banney Singh. In the same manner, verification of Ex.
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P22 shows that Arjun Singh and Banney Singh fired at the
deceased Himmat Raj Singh and, thereafter, Bheem Singh and
Shivraj Singh fired at the brothers of Himmat Raj Singh when
they were going to inform the police. Though Mr. Bajwa
pointed out certain discrepancies as to the number of gun
shots, in view of the number of injuries, as seen from Exs. P1-
P4, supported by the evidence of Dr. Manmohan Sharma (PW-
1), the said objection is liable to be rejected and participation
of these three accused, namely, Arjun Singh, Banney Singh
and Shivraj Singh is clearly proved through various
circumstances including the evidence of PW-2.
17) Finally, learned senior counsel for the accused pointed
out that inasmuch as Himmat Raj Singh died after 35 days
due to septicemia, the Courts below are not justified in
convicting the accused persons for an offence under Section
302 IPC for his death. Considering the medical evidence that
Himmat Raj Singh sustained 7 gun shot injuries which were
sufficient to cause death in the ordinary course, we are
satisfied that the death of Himmat Raj Singh undoubtedly falls
within the ambit of 302 IPC.
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18) The materials placed by the prosecution clearly prove the
guilt against the three convicted accused, namely, Shivraj
Singh, Arjun Singh and Banney Singh who were armed with
guns and with their common intention they fired gun shots
resulting in death of Raghuraj Singh and Himmat Raj Singh as
well as causing injuries to Raj Singh (PW-2), in such
circumstances, their conviction and sentence by both the
courts have to be confirmed.
19) Dr. Manish Singhvi vehemently argued as to the role of
the acquitted accused. As discussed in the earlier paras and
on going through the evidence relating to their role and the
detailed analysis by the High Court, we agree with the said
conclusion and reject his arguments. For the same reasoning,
the appeals filed by the son of the complainant are also liable
to be dismissed.
20) In view of the above discussion and conclusion, we agree
with the decision of the High Court, consequently, all the
appeals are dismissed.
...........................................J.
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(P. SATHASIVAM)
...........................................J.
(H.L. GOKHALE)
NEW DELHI;
SEPTEMBER 2, 2011.
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