GOKHA SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal has been filed by accused Gokha Singh, who has been convicted and sentenced by the learned AddI. Sessions Judge, Sri Ganganagar by his judgment dated November 17,1972 for the offences under ss. 148, 366, 458, 302/149 and 307/149 I.P.C.

(2.) The facts necessary to be noticed for the disposal of this appeal succinctly stated are: that one Gurjantsingh had some love affair with Baljit Kanr, daughter of P.W. 26 Gurdeosingh of village Baam. He abducted her and later when she was recovered, her father married her to Singarasingh of village Jaloki, who is the younger brother of Dharamsingh. It is alleged that Gurjant Singh hatched a conspiracy to abduct Mst. Baljit Kaur from village Jaloki with his companions Jagmail Singh, Nazarsingh, Kamail Singh, Bayant Singh, Jagdeep Singh and Shital Singh. The sisters of accused Bayantsingh and Jagdeepsingh was married earlier to the deceased Singarasingh. He, however, left their sister and married to Baljit Kaur. It is alleged that Gurjant Singh employed Jagdeepsingh and Bayant Singh to inform him about the whereabouts of Dharamsingh the elder brother of Singarasingh and Mst. Baljit Kaur. When they informed him that every thing is O.K. and Dharamsingh has gone to Kota and Baljit Kaur is there in Dhani at village Jaloki. Gurjantsingh, Jagmailsingh, Nazarsingh, Karnailsingh, Gokhasingh, and Shitalsingh went to village Jaloki in a ear driven by accused Karamsingh on the night intervening between 25th and 26th of August, 1970. Bayantsingh and Jagdeepsingh did not accompany them. It is further alleged that all the arms were collected by Gurjantsingh and when the car reached near Padampur town in district Sri Ganganagar, he distributed the weapons to all the accused-persons. He himself was armed with a 12 bore gun and accused Nazarsingh was given 401 bore rifle and accused Gokhasingh was given one Deshi Pistol and certain cartridges. At about 12 or 12.30 in the night when they reached village Jaloki, they left the car at some distance from the house of Singarasingh. The door of Singarasinghs house does not open in the lane but it opens In the Bara. Karamsingh was left with the car where as these 5 accused-persons viz., Gurjantsingh, Jagmailsingh Nazarsingh, Karnailsingh and Gokhasingh alongwith approver Shitalsingh entered into the house of Singarasingh through the door in the Bara. It is alleged that Gurjit Kaur, wife of Dharamsingh, Surjeetkaur, mother-in law of Gurjit Kaur and 5 children of Gurjit Kaur were sleeping in the Angan of their house. Singarasingh and Mst. Baljit Kaur were sleeping 5-10 paces away from them. It is alleged that it was a moon-lit night and a lantern was burning in the house. Accused Gurjantsingh was also having one torch. He flashed his torch and caught the legs of Gurjitkaur. When he found that he has committed a mistake, he left three persons near those cots and other three of them, as per approver Shitalsingh, proceeded towards the cots of Singarasingh and Baljitkaur. There, accused Gurjantsingh told Singarasingh that I have come. On this Singarasingh tried to sit there but accused Gurjantsingh fired from his gun and this resulted into the death of Singarasingh. He then caught hold of Baljitkaur and took her out of the cot. Baljitkaur cried Gurjanta now kindly leave me alone and allow me to settle down. However, on hearing the gun fire, Surjitkaur came towards the cot of Baljitkaur. She too was fired by Jagmail Singh, and succumbed to the injuries. They dragged Baljitkaur towards the Bara. It is alleged that approve, Shitalsingh caught hold of her. He tried to grapple with Baljitkaur who escaped in the Bara. He again caught her in the Bara. In the meanwhile, P.W. 7 Dalip Singh arrived there armed with a spear and challenged the accused-persons as to who they are? When a cross-question was flashed from the side of the accused-persons, he answered that he is their man. Gurjantsingh immediately told him that he is not their man and he too was fired. The accused-persons then took away Mst. Baljit Kaur to the car. In the way, to frighten the villagers not to interfere with the act of the accused-persons, the accused-persons fired from their guns, pistols, and revolvers etc. The accused-party alongwith Baljit- Kaur then went towards the Punjab. In the way, it is alleged that approver Shitalsingh tried to tease Mst. Baljitkaur. This enraged Gurjantsingh and he fired from his gun at Shitalsingh. Shitalsingh was injured by the gun-fire. He was, then, thrown from the car near village Dodakoni. He became unconscious. Thereafter, the villagers took him Dodakoni hospital where on the next day, at about 10 or 10. 30 A.M., he regained consciousness and informed the Doctor about the entire incident. The Doctor immediately called the police from Police Station, Kotbhai, from where, A.S.I. Rajendrasingh came to the hospital and recorded the statement of Shitalsingh, which has been marked Ex. P.59 and on the basis of which, a formal F.I.R. Ex. D. 1 was recorded at Police Station, Padampur because the occurrence took place in the area of P.S. Padampur. On the basis of this information, it is alleged that all these accused-persons were arrested So far as accused Gokhasingh is concerned; he was arrested along with Kamalsingh and Nazarsinghby the S.H.O. Zeetsingh with the help of S.H.O. Mokamsingh of Kotbhai in the presence of Motbirs P.W. 27 Gurbachansingh and P.W. 28 Avtarsingh. On arrest, one pistol marked Art. He was recovered along with two cartridges from the possession of the accused Gokhasingh. The Police also recovered certain cartridges Art. B-i to B-6 from near the car in village Jaloki. The articles recovered from the accused and crime empty cartridges were all sealed along-with other weapons and they were sent for ballistic examination to the Central Forensic Science Laboratory, Calcutta. The Central Forensic Science Laboratory, Calcutta has reported that one of the crime-cartridges i.e., B-i was fired from the pistol-Act. He recovered from the accused Gokhasingh. The test identification of accused Gokhasingh alongwith others was also got conducted in which Gurjit Kaur failed to identify Gokhasingh but Dalipsingh identified him correctly. On the basis of this evidence, accused Gokhasingh along with other accused-persons was challaned in the Court of Munsif & Judicial Magistrate, Srikaranpur from where the case was committed for trial to the court of Sessions Judge, Sri Ganganagar. The case was later transferred for trial to the Court of Additional Sessions Judge, Sri Ganganagar. All the 8 accused-persons were tried by the learned AddI. Sessions Judge, Sri Ganganagar for various offences. After conclusion of the trial, the learned AddI. Sessions Judge held that Bayantsingh and Jagdeepsingh have not taken part in the conspiracy and about the conspiracy the only evidence produced by the prosecution is of approver Shitalsingh and, therefore, without corroboration, that evidence was not sufficient to convict them of the said offences. The offence under s. 120-B. I.P.C. was not held as proved against any of the accused-persons. Accused Karamsingh too, was acquitted by the learned lower court on the same ground that against him too, the only evidence on record is that of the approver Shitalsingh and without corroboration, he too cannot be convicted. The learned lower court, however, convicted accused Gurjantsingh, Jagmail Singh, Nazarsingh, Karnailsingh, and Gokhasingh of the various offences. We have already specifically mentioned the offences of which accused Gokhasingh was held guilty. However, accused Gurjantsingh was sentenced to death and so he preferred a murder reference whereas accused Jagmail Singh, Karnailsingh and Nazarsingh also preferred a joint appeal. A Division Bench of this Court consisting of V.P. Tyagi and K.D. Sharma, JJ. (as they then were) confirmed the death sentence of accused Gurjantsingh and dismissed the appeal filed by accused Jagmail- singh and Karnail singh. However, the appeal filed by Nazarsingh was accepted and he was acquitted of all the charges of which he was held guilty b)T the learned AddI. Sessions Judge, Sri Ganganagar. The appeal of the present appellant Gokhasingh was not heard and considered with those appeals although some passing references have come in the Judgment of the Division Bench about the participation of the accused Gokhasingh in the crime but that judgment cannot operate as res judicata so far as the appeal of Gokhasingh is concerned because the appeal of Gokhasingh was not there before the Division Bench. The learned lower court has held accused Gokhasingh giving of the offences under ss. 148, 366, 458, 302/149 and 307/149 I.P.C. on the basis of the testimony of the approver Shitalsingh which is alleged to have been supported by the testimony of P.W. 3 Gurjitkaur and P.W. 7 Dalip Singh, the identification of the accused and the recovery of the crime pistol and some empty cartridges from the possession of the accused Gokhasingh.

(3.) We have heard Mr. S.R. Singhi, learned counsel for the accused-appellants and Mr. L.S. Udawat, learned Public Prosecutor for the State. We have carefully gone through the record of the case and have given our most earnest consideration to the submissions made at the bar.