GULJARA SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE prosecution story, In brief, is that on October 12, 1967, at about 8 P. M. , when the two brothers Hamendra Singh and Bayant Singh. sons of Jodh Singh, were taking their meals in their house in village 12 F. F. , they heard the shouting of the three persons Guljara Singh, Singhara Singh, sons of Kishan Singh, and Mit Singh son of Sohan Singh as also that of Darbara Singh (deceased), son of Kishan Singh. Both Hamendra Singh and Bayant Singh came out of their house and saw the above named persons on the culvert at a distance of about 5 "paundas". Guljara Singh and his party men challenged Harnendra Singh and Bayant Singh and asked them to proceed forward. Thereupon Bayant Singh hurled abuses at them. Darbara Singh, Mit Singh and Singhara Singh were empty handed. The accused Guljara Singh was armed with a 12 bore gun. Guljara Singh fired his gun at Bayant Singh hitting him on his hand. He again fired his gun hitting Bayant Singh at his left flank, as a result of which he fell down. Harnendra Singh, Jeet Singh, Sukhvender Singh and Bachan Singh took Bayant Singh inside their house. Later on, he was taken to the railway station, Jorawar-Singhpura, in a bullock cart. He was then taken to Karanpur by train to get medical aid. The Doctor, incharge of the Government Dispensary, Karanpur, was not available. He was, therefore, taken to a private practitioner Sardar Apar Singh, who is now dead. Harender Singh then went to the police station, Karanpur and lodged first information report Ex. P-l. The police registered a case and started investigation. The Sub-Divisional Magistrate, Karanpur, was approached by the police to record dying declaration of Bayant Singh, Bayant Singh, however, refused to make any statement. Dr. Apar Singh advised Harnendra Singh and others to take Bayant Singh to Ganganagar Hospital. When he was being taken in a jeep car, he breathed his last on the way near the village Sahib Singhwala. The dead body of Bayant Singh was brought to Karanpur. The Medical Officer, Incharge Karanpur Dispensary, was out of station. Dr. C. S, Bhati, Medical Officer, Padampur, was requested to conduct the postmortem examination of the dead body of Bayant Singh. As a result of the autopsy the following injuries were noticed by the Doctor:-1. Lacerated wound 1/2" x 2" on the palmer surface of left thener emminence. No blackening, or scorching or tatooing was present.

(2.) GUN shot wound of entry with irregular lacerated inverted edges l1/2" x 1" chest cavity deep on the fifth left intercostal space middle vicular line. No blackening or scorching was present.

(3.) GUN shot wound of exit 1/3" x 1/4" on the back of the chest left side on the lateral side of the lateral border of left scapula lower edges of the wound were inverted and lacerated. No blackening or scorching or tatooing was present. Internal:--The gun shot wound of entry l1/2" x l"x chest cavity deep with a lacerated inverted irregular edges in the fifth intercostal space mid clavicula line communicated with the exit wound 1/3" x 1/4" on the back of the chest on the lateral side of the lower part of the left scapula. The gun shots transversed through the pleural cavity and pericardial cavity, injuring the apex of the heart. Inferior surface and lower part of the left lung was coming out through the pleural cavity into the subcutaneous tissue. Seven shots were found lodged in an area of 3" x 4" around the exit wound on the left side of the back of the chest. The pericardial and pleural cavity were full of dark blood. Left half of the heart also contained some blood. Right half of the heart also contained some blood. A cork was removed from the chest wound and the seven shots from the back of the chest. Fifth and sixth ribs were fractured in the posterior part. In larynx trachea and right lung nothing abnormal was detected. Liver, spleen and kidney were pale. Bladder was empty. Stomach and small intestines contained food material in the process of digestion. In the opinion of the Doctor the cause of death was shock and haemorrhage as a result of the gun shot wound on the chest. The injuries were antemortem and were sufficient in the ordinary course of nature to cause death. Injuries Nos. 2 and 3 were ' caused by gun fire. The Doctor is not very sure about the nature of injury No. 1 on the palmer surface. Probably it was caused by gun fire. The Station House Officer, Karanpur, prepared a site plan, and inquest report. In the meantime a cross-case was registered against Jeet Singh, Balbir Singh, Sukhvendra Singh and Gurmej Singh for murdering Darbara Singh, brother of the accused Guljara Singh and Singhara Singh. The accused Guljara Singh, Mit Singh and Singhara Singh were arrested on October 15, 1967. After the investigation was concluded, Singhara Singh, Mit Singh and Guljara Singh were challaned by the police in the Court of Sub-Divisional Magistrate, Karanpur. The committing Court conducted proceedings in accordance with the provisions of Section 207-A, Criminal P. C. , and committed the accused to the Court of the Sessions Judge, Ganganagar. Guljara Singh was to be tried under Section 302, I. P. C. Singhara Singh and Mit Singh were to stand trial under Section 302/34, I. P. C. The trial Court charged the accused Guljara Singh under Section 302, I. P. C. and Singhara Singh and Mit Singh under Section 302, read with Section 114, Indian Penal Code, to which they pleaded not guilty. In support of its case the prosecution examined 8 witnesses. In his statement recorded under Section 342, Criminal P. C. , Guljara Singh denied to have fired at Bayant Singh and pleaded alibi. Singhara Singh and Mit Singh stated that on the day of the occurrence at about 7-45 P. M. , when Singhara Singh and his brother Pyara Singh were inside their house and their brother Darbara Singh had gone out, they heard Balbir Singh uttering insulting or coarse language. Pyara Singh went out of the house and after a minute or two Singhara Singh also came out. They saw Darbara Singh and Pyara Singh standing near the 'kharas' (grinding machine) and Jeet Singh and Balbir Singh standing in front of the house of Harnendra Singh. Balbir Singh was armed with a double barrel gun and his brother Jeet Singh was having a 'kirpan'. Harnendra Singh and Sukhvendra Singh also came there. Sukhvendra Singh had a double barrel gun and a bag of cartridges. Sukhvendra Singh challenged the accused party. But Mit Singh and Charan Singh took him under a 'bod' tree near Jeet Singh and Balbir Singh. Singhara Singh, Pyara Singh and Darbara Singb then started towards their houses. In the meantime Gurmej Singh came and inflicted a blow to Singhara Singh with the blunt side of 'takua'. Pyara Singh caught hold of Gurmej Singh's tuft of hair and Singhara Singh snatched 'takua' from Gunnel Singh and inflicted 2 or 3 blows to him therewith. Darbara Singh went towards the culvert and told Harnendra Singh that the opposite party was doing injustice to him. Jeet Singh then asked Balbir Singh to shoot at Darbara Singh. Balbir Singh made two fires simultaneously hitting Darbara Singh. Soon after Jeet Singh delivered a 'kirpan' blow to Darbara Singh's head, culminating in his death on the spot. Bayant Singh, who was a friend of Darbara Singh, approached him and so did Pyara Singh. Jeet Singh then shouted that Pyara Singh, the elder member of the family, should be done to death. Thereupon Balbir Singh fired towards Pyara Singh. Pyara Singh, however, jumped into a nearby pit and the two shots hit Bayant Singh. Harnendra Singh, Jaswant Singh and Kundan Singh carried Bayant Singh to his house. When Balbir Singh, Jeet Singh and Sukhvendra Singh commenced carrying the dead body of Darbara Singh towards Harnendra Singh's house, the latter told them, as to why they were bringing Darbara Singh there. The dead body of Darbara Singh was, therefore, left by them near the culvert. Later on, it was carried fay Pyara Singh and others to their house. In their defence the accused examined D. W. 1 Charan Singh. The trial Court, by its judgment, dated February 25, 1969, convicted the accused Guljara Singh under Section 302, I. P. C. , and sentenced him to imprisonment for life. The accused Mit Singh and Singhara Singh were acquitted of the offence, with which they were charged. Aggrieved by the above verdict, Guljara Singh has filed this appeal. 2. Contention of learned counsel for the appellant is two-fold. His first grievance is that the prosecution has failed to prove that Guljara Singh shot Bayant Singh dead. His another argument is that even if it is proved that Guljara Singh fired his gun at Bayant Singh, he did so in the exercise of the right of private defence of his person. Learned counsel for the State vehemently supported the judgment of the Court below. 3. We may now take up the first point. The prosecution in support of its case examined 4 witnesses, namelv, P. W. 1 Harnendra Singh, son of Jodh Singh, and brother of the deceased Bayant Singh; P. W. 2 Gurmej Singh, son of Badhva Singh; P. W. 3 Sukhvendra Singh, son of Gurmei Singh, and P. W. 6 Jeet Singh, son of Thakur Singh. P. W. 1 Harnendra Singh, who lodged the first information report Ex. P-l, with the police station Karanpur, on October 12, 1967, at 10-15 P. M. states that he and his brother Bayant Singh were taking their meals. They at that time heard shouts and abuses of Singhara Singh, Barbara Sinfih, Guljara Sinfih and Mit Sinfih. Thereafter both he and his brother came out of their house. Guljara Singh had a gun and the other three persons, namely, Singhara Singh, Mit Singh and Barbara Singh, were empty-handed. In, the meantime Sukhvendra Singh, Jeet Singh and Gurbachan Singh also arrived there. Bayant Sinfih abused the accused persons in return. Guljara Singh then fired at Bayant Singh, hitting his left thumb. He fired again on his rib. Bayant Sinfih, having received a serious injury, fell down. The witness further states that the Sub-Divisional Magistrate, Karanpur, wanted to record dying declaration of Bayant Singh, but he refused to make any such statement, although he was in his senses and was talking to the people then. The witness further says that he did not see anyone inflicting injury to Gurmej Singh and that none of the accused persons asked Guljara Singh to fire. In the police statement Ex. P-6, at portion marked A to B, the witness had said that both Singhara Singh and Mit Singh had asked Guljara Singh not to run away and to hand over his gun to them or he himself should fire it. Thereupon Guljara Singh came forward and fired his gun, hitting Bayant Singh. No explanation is forthcoming in regard to this important and pertinent discrepancy. On the other hand, the witness has deposed before the trial Court that Barbara Singh, Singhara Singh and Mit Singh did not utter a word on the spot. Curiously enough the witness has also stated that Gurbachan Singh, Sukhvendra Singh, Bayant Singh and he himself were empty-handed. He is uncommunicative as to how Barbara Singh sustained injuries, causing his death on the spot. He, however, admits that Barbara Singh did receive gun fire injuries. The witness further admits that there was none else besides the above-named persons on the scene of the crime. The witness also says that Balbir Singh was not on the spot, nor did he fire his gun at Barbara Singh and that Barbara Singh and Balbir Singh were friends and that it was wrong to suggest that Balbir Singh had fired his gun at Bayant Singh. According to the Doctor C. S. Bhati, Medical Officer, Government Dispensary, Padampur, who conducted the postmortem examination of Barbara Singh's dead body on October 13, 1967, at 10 a. m. Barbara Singh received 6 gun shot injuries and one incised wound on the head. The Boctor is of the opinion that Darbara Singh must have died instantaneously and probable time of the death was within 24 hours of his conducting the post-mortem examination. In his opinion. Barbara Singh died of shock and hemorrhage as a result of the gun shot injuries and that those injuries were in the ordinary course of nature sufficient to cause his death. The injuries were antemortem. It is also in the evidence of Br. Bhati that Singhara Singh received the following 3 injuries:--1. Lacerated wound 6" x 3" x 1" on the right eye brow just above the lateral part. 2. Abrasion 11/4" x 1/6" on the left side of back medial to the scapula. 3. Abrasion 11/4" x 1/8" on the right side of back lumber region. These injuries were simple and were caused by a blunt object. Their duration was 48 hours. His medical examination took place on October 14, 1967. The witness Harnendra Singh is reticent not only in regard to the death of Barbara Singh, but also about the injuries of Singhara Singh. The trial Court wholly ignored the significance of the injuries on the persons of Barbara Singh and Singhara Singh. The injuries sustained by the two victims at the time of the occurrence are highly probabilised. The prosecution witness had a duty to explain these injuries, but he fails to do so. Under the circumstances, we are unable to agree with the trial Court that the testimony of Hamendra Singh is trustworthy. In our judgment, silence on the part of the witness Hamendra Singh in regard to the various injuries found on the bodies of the above-named two persons shows that his evidence relating to the incident is not true or, at any rate, not wholly true. The trial Court did not take into consideration this salient feature of the case. We are thus satisfied that the Court below erred in relying upon, the testimony of Hamendra Singh on the sole ground that the version put forward by him is supported by the first information report. In this connection we may refer to a decision of their Lordships of the Supreme Court, in Mohar Rai v. State of Bihar, AIR 1968 SC 1281. In that case His Lordship Hegde J. , speaking for the Court, observed: "the evidence of Br. Bishun Prasad Sinha (P. W. 18) clearly shows that those injuries could not have been self-inflicted and further, according to him if was most unlikely that they would have been caused at the instance of the appellants themselves. Under these circumstances, we are unable to agree with the High Court that the prosecution had no duty to offer any explanation as regards those injuries. In our judgment, the failure of the prosecution to offer any explanation in that regard shows that the evidence of the prosecution witnesses relating to the incident is not true or, at any rate, not wholly true. Further those injuries probabilised the plea taken by the appellants. "