DAYA SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) DURING the night intervening August 21 and 22, 1965, a theft is alleged to have been committed in the house of Birah Singh, son of Moher Singh Gujar, resident of Shergarh The complainant was relived of currency notes of Rs. 500/- and ornaments, utensils and clothes worth about Rs. 2500/ -. First information report of the occurrence (Ex. P. 6) had been lodged by Birah Singh with the Police Station, Bayana, on August 22-1965, at 5. 30 p. m. Birah Singh and his brother Daya Singh suspected Bhagwan Singh of the village Shergarh to be the thief. On August 27-1965, Mst. Moti Bai, daughter-in-law of Bhagwan Singh, told her brother-in-law Roshan, P. W. W. 4, a boy of about 13 years old, to request his father to take her to her parents' house at Uncha. Bhagwan Singh agreed to it. It was decided that they would go next morning to Uncha via Dumaria Rly. Station. Bhagwansingh was employed as a labourer in a crush machine, installed somewhere near Sikandra. He proceeded on his duty in the early hours of the morning of August 28-1965. Thereafter Mst. Moti Bai, wife of Shanker Singh, and her brother-in-law Roshan, left their house. They went to the crusher machine, where Bhagwan Singh joined them. All the three persons then left for Dumaria Railway station. They crossed Sikandara and when they proceeded a little ahead therefrom, Birah Singh and Daya Singh waylaid them. Daya Singh was armed with a lathi. Birah Singh was, however unarmed. Both Daya Singh and Birah Singh told Bhagwan Singh to return to Shergarh. Bhagwan Singh told them that he would leave her daughter-in-law to her parents' house and then would return to his village just after a day. Thereupon, Birah Singh and Daya Singh spoke to him that they would not allow him to go further and that if he persisted to do so, he would be put to death. Bhagwan Singh defied their mandate. Birah Singh caught hold of him and felled him down. Daya Singh snatched away his lathi and handed it over to his brother Birah Singh. Both the accused mercilessly gave beating to Bhagwan Singh with lathis. Mst. Moti Bai and Roshan raised an outcry, which attracted three other persons on the spot. These people attempted to intervene in the matter, but the accused did not desist from their activity. Thereupon two of them went away. Bhagwan Singh asked the third person to take him under the shade of a tree. Thereafter he was again beaten by the accused with lathis. Bhagwan Singh died on the spot after sometime. The two accused then searched the box which was with Mst. Moti Bai, but they could not find any stolen thing therein. Both Mst. Moti Bai and Roshan were told by the accused to go back to Shergarh, lest they might also be killed. Mst. Moti Bai concealed herself in a quarry. Roshan somehow managed to reach the Police Station, Bayana, where he submitted first information report Ex. P. 8 on August 28, 1965, at 4 p. m. Police registered a case against the accused under sec. 308, I. P. C. , and investigation followed. The Station House Officer, Bayana, Manoharlal, P. W. 8, arrived at the spot. He prepared 'panchnama' of the dead body of Bhagwan Singh, Ex. P. 12. He also prepared site plan Ex. P. 6 and inquest report Ex. P. 7. He seized blood-stained sand, a turban and a pair of shoes of Bhagwan Singh deceased under memos Exs. P. 9 to P. 11. Dr. Anant Narain, P. W. 9 Medical Officer, Bayana, performed the post-mortem examination of the dead body of the deceased. He found the following external injuries on his dead body - (1) Contusion 5" x 1" obliquely, near inferior angle of scapula. (2) Contusion 6" x 1/2 obliquely, left lumbar region. (3) Contusion 5-1/2" x 1/2" obliquely, left supra scapular region. (4) Contusion 2" x 1/2" obliquely on left shoulder, 1-1/2" distal to achromion. (5) Contusion 2"x 1/2" obliquely on posterior aspect of middle third of left arm. (6) Contusion 3" x 1-1/2" transversely on anterior aspect of right arm junction of upper one-third and lower two-thirds. (7) Contusion left side of face, zygoma, upper and lower eye-lids. (8) Lacerated wound 1/2" x 1/4"x 1" on left shoulder with surrounding contusion (on injury No. 4 ). (9) Lacerated wound 1-3/4" x 1/2" x 1/2" on posterior aspect of left arm, near its middle. (10) Lacerated wound 1" x 1/4" x 1/2" on dorsal aspect of left hand, second metacarpal two inches proximal to meta-carpal phalyngeal joint with edema. (11) Lacerated wound 1/2" x 1/2" on lacerated aspect of root of thumb, left hand. (12) Lacerated wound 1/4" x 1/4" x 1/4" on dorsal aspect of first inter phalyngeal joint of left ring finger. (13) Lacerated wound 3-1/4" x 1/4" x 1/2" obliquely on medial side of left forearm, middle one third exposing bone and muscles. (14) Lacerated wound 3"x 1/2"x l/3" on medial side of left leg, vertically three inches above medial maliolus, exposing muscles and bone. (15) Lacerated wound 1/4" x 1/4" x 3/4" punctural) on lateral aspect of leg, junction of upper three-fourth and lower one-fourth. (16) Lacerated wound 3" x 1/2" x 1/4" transversely on lateral maliolus, left leg. (17) Lacerated wound 6"x4" on anterior aspect of right leg from lateral maliolus upwards vertically, exposing tendons muscles, with injuries to the nerves and blood vessels with fracture of the tibia, and fibula, right side - bones fractured at three places in this six inches' area. The limb below is hanging with skin and muscles on medial and posterior side. (18) Punctured wound 1/2" x 1/4" x 1/2" on anterior aspect of right leg in its middle with edges contused. (19) Lacerated wound l" x 1/2" on scalp obliquely, four inches above occiput and 1/4 inches left of mid line. All the injuries were ante-mortem in nature. Injury No. 17 was grievous. The injuries were caused by blunt objects. According to the Doctor no injury was individually sufficient to cause death. But all the injuries collectively were sufficient in the ordinary course of nature to cause death. In the opinion of the medical witness Bhagwan Singh died of bleeding from the injuries in general and injury No. 17 in particular, which was rupture of the nerves, blood vessels, and fracture of bones, tibia, fibula, and resulting shock. On conclusion of the investigation, the police put up a challan in the court of learned Munsiff-Magistrate, Bayana. The said Magistrate conducted committal proceedings in accordance with S. 207-A Cr. P. C. and committed both the accused Daya Singh and Biran Singh to the court of Sessions Judge, Bharatpur, to take trial under sec. 302, I. P. C. Both the accused were charged under secs. 302 and 302/34, I. P. C. , on February 11, 1966. to which they pleaded not guilty and claimed to be tried. In support of its case the prosecution examined 9 witnesses. In their statements recorded under sec. 342 Cr. P. C. the accused denied to have committed any offence. Their plea was that Bhagwan Singh had illicit [connection with Mst. Moti Bai. That fact angered the family members of the father of Mst. Moti Bai and her husband. It was, therefore, possible that some person from the family of the father of Mst. Moti Bai might have assassinated Bhagwan Singh. Their other plea was that the faces of the assailants were covered and, therefore, they could not have been identified by the eye-witnesses. In their defence, the accused examined 2 witnesses D. W. 1 Prabhu and D. W. 2 Man Bhota. By his judgment, dated September 3, 1966, learned Sessions Judge, Bharatpur, convicted both the accused Birah Singh and Daya Singh, under secs. 302/34, I. P. C. , and sentenced each of them to imprisonment for life.

(2.) AGGRIEVED against the above verdict, the two accused, Daya Singh and Birah Singh, have taken this appeal. Contention of learned counsel for the appellants is two fold. His first grievance is that no offence under sec. 302/34 I. P. C. , has been brought home to the accused. Hukam, P. W. I. Mohar Singh, P. W. 2 and Sitaram, P. W. 5. do not at all support the prosecution story. Mod Bai P. W. 3. stated before the committing court (vide Ex. D. 1) that she did not know Birah Singh and Daya Singh before hand. Roshan, PW 4. has dis-owned a portion of his statement marked A to B in Ex. D. 3. recorded by the police and as such his statement too, according to learned counsel, cannot be said to be of sterling worth. The other witnesses have made categorical statements that the faces of the accused persons were covered at the time of the assault. This fact, according to the learned counsel for the appellants, is corroborated by Prabhu, D. W. 1, and Man Bhota, D. W. 2. The other point raised by learned counsel for the appellants, is that even if it is held that the accused persons gave beating to Bhagwan Singh, the matter would at the most be covered by S. 325/34, I. P. C. , and in that case they should be released under the provisions of the Probation of Offenders Act, 1953.

(3.) BEFORE we part with this case, it may be pointed out that learned counsel for the appellants urged that the accused Daya Singh is suffering from tuberculosis and that the other accused Birah Singh is below 21 years of age and, therefore, they should be given benefit of the provisions of the Probation of Offenders Act, 1958. In the memo of the appeal, Daya Singh's age has been given as 25 years. In his statement before the trial court, his age is noted as 24 years. Birah Singh's age in the memo of appeal is mentioned as 30 years. In his statement before the trial court, his age is inserted as 25 years. There in also nothing in law that in a serious crime like this benefit of the provisions of the Probation Act, 1958, can legitimately be claimed by the accused on the ground of sickness.