A.M. Kapadia, J. - (1.) The acquittal of the respondents original accused No.1 to 4 Munshi Singh, Surjeet Singh alias Leela Singh, Mewa Singh, Deva Singh alias Baldev Singh (A-1 to A-4) of the offences punishable under Sections 302, 307, 120B & 34 of the Indian Penal Code ('IPC' for short) recorded by the learned Sessions Judge, Sri Ganganagar vide judgment and order dated 18.01.1984 in Sessions Case No. 53 of 1983 is the subject matter of challenge in the instant appeal which is filed under Section 378 of the Code of Criminal Procedure (the Code, for short) by the appellant State of Rajasthan.
(2.) The facts emerging from the record of the case and more particularly as disclosed in the FIR and unfolded during the trial are as under: 2.1 On 10.06.1983, PW1 Hardeep Singh s/o Mukand Singh, by caste Jat Sikh, gave an oral report at Police Station, Sadar, Sri Ganganagar, wherein he inter-alia stated that at about 11-12 Noon, when he was in the shop on cotton carding machine and his father Mukand Singh was standing outside shop in front of the machine, at that time Surjeet Singh armed with Sela, Mewa Singh & Deva Singh with Gandasi, Munshi Singh having Sela, Chidi Singh (brother-in-law of Surjeet) and Phula Singh with Sela, came there and caused injuries to his father Mukand Singh by Selas and Gandasis with the intention to kill him and when they made hue and cry, his brother Gurdeep Singh, Lal Singh and Patwari Ram came on spot. Surjeet Singh inflicted injury with Sela to his brother Gurdeep Singh with intention to kill him and then all these persons left the place thinking that his father had expired. Thereafter, Lal Singh and Patwari Ram taken his father and brother to hospital in tractor but on the way his father died on account of the injuries received by him and his brother was got admitted in the hospital. 2.2 The aforesaid complaint was registered vide FIR No.125 of 1983 at Police Station Sadar, Sri Ganganagar against six persons named therein. The motive for the incident was that deceased Mukand Singh had two sons, one Hardeep Singh (PW1) and another Gurdeep Singh alias Gurdev Singh (PW2). The second son i.e. Gurdeep Singh had gone in adoption to Hakim Singh, the brother of deceased Mukand Singh. Munshi Singh had forcibly occupied the agricultural land belonging to said Hakim Singh and also managed to get the mutation done in his name due to which, there had been litigation between Gurdeep Singh and Munshi Singh. On account of this, Munshi Singh and his three sons, namely, accused Mewa Singh, Leela Singh and Deva Singh were annoyed with him while deceased Mukand Singh deceased used to help Gurdeep Singh. 2.3 On registering the FIR, investigation was put into motion and during the course of investigation, Chief Judicial Magistrate, Sri Ganganagar ordered the Judicial Magistrate to record dying declaration of injured Gurdeep Singh. Thereafter, investigation was taken over by the Incharge Police Station from ASI, who inspected the place of occurrence at the instance Hardeep Singh and prepared Ex.P/1 & P/2. He found there blood and also found one pair of Juti, glass of a watch, ring and an axe. All these articles were taken into possession and sealed. He also took in possession and sealed the sample soil and prepared Ex.P/3. Thereafter, he returned to hospital and after inspecting the dead body of Mukand Singh, he prepared Inquest Report Ex.P/4 and Panchayatnama Ex.P/14 and thereafter sent the dead body of Mukund Singh for postmortem examination. 2.4 PW3 Dr. Rajendra Kumar Gupta conducted the postmortem examination on the dead body of deceased Mukand Singh and prepared report which is on record as Ex.P/12. He also examined the injuries on the body of Gurdeep Singh and prepared Injury Certificate Ex.P/11. 2.5 On completion of investigation, as sufficient incriminating evidence was found only against four accused persons, chargesheet was filed against four accused persons in the Court of the learned Munsif & Judicial Magistrate, 1st Class, Sri Ganganagar for the offence under Section 302, 307/34 and 120-B IPC. 2.6 As the offence punishable under Section 302 of the IPC is exclusively triable by a Court of Sessions, the learned Munsif & Judicial Magistrate, committed the case for trial to the Court of Sessions at Sri Ganganagar (for short, trial Court, hereinafter). 2.7 The trial Court, framed charge against the accused Munshi Singh and Leela Singh for commission of the offence punishable under Sections 302 IPC, in alternate 302/34, 307, 326/34, and against Devi Singh and Mewa Singh under Sections 302/34, 307, 326/34, which was read over and explained to the accused. The accused pleaded not guilty to the same and claimed to be tried, therefore, they were put to trial. 2.8 To prove the culpability of the accused, prosecution has examined as many as 8 witnesses including two eye witnesses i.e. PW1 Hardeep Singh and PW2 Gurdeep Singh and relied upon their oral testimony. To prove the charge leveled against accused persons, the prosecution also produced in all 33 documents and relied upon the contents of the same. 2.9 After recording of the evidence of the prosecution witnesses was over, the trial Court recorded further statements of the accused as required under Section 313 of the Code wherein the accused denied the prosecution case and stated that a false case has been filed against them and put up the case of self defence. It is stated that Munshi Singh, accused No.1 caused injuries to deceased Mukund Singh in his private defence as the deceased was aggressor. Accused No.1 in his further statement has stated that at the time of incident, he was going to take care of his land and was having with him Sela and while he was passing in front of the flour mill of Mukand Singh, Mukand Singh came from behind and caught hold of him and in that process, his wrist watch's glass, ring and hand of seconds fell there. Mukund Singh brought an axe from nearby flour mill and ran towards him to kill him so he frightened ran from there but Mukund Singh reached near to him and was about 15 pawands and blown axe on him and in defence he inflicted injuries to him. On giving axe blow by Mukund Singh, his Sela broke and the groove of Sela fell down. He gave blows by the stick of Sela to Mukund Singh in his defence and by then Gurdeep Singh came there, who tried to snatch the stick of Sela from him and caught hold of it so he gave blow of the groove on Gurdeep Singh. During this, the axe of Mukand Singh fell on the spot and he himself fell down while going towards the side of his house. Surjeet Singh, Deva Singh and Mewa Singh were not there. Hardeep Singh was also not there. He went to police station in the night on same day to lodge report of the incident but the report was not written and he was forced to sit there. He admitted the glass and ring being of his watch, which he submitted the day before. According to him, the land of Hakam Singh was entered in his name and that was the cause for rivalry. He stated that the groove of his Sela was blunt and he was innocent. The accused persons neither led any evidence nor examined any witness to support their defence. 2.10 On appreciation of the evidence adduced, the trial Court held that the deceased died a homicidal death, however, the prosecution has failed to prove charge leveled against accused as independent two eye witnesses i.e. Lal Singh and Pawari Ram have not been produced before the trial Court. For not accepting the evidence of the prosecution, the trial Court has recorded following reasons: (i) Independent eye witnesses i.e. Lal Singh and Patwari Ram were not produced by the prosecution. (ii) Motive is not proved (iii) Eye witnesses are not reliable as - (a) they have improved their version from stage to stage and also changed the version given in FIR (b) they did not come with true story (c) their conduct was unnatural (iv) FIR was post investigation (a) FIR lodged at 12:30 PM (b) FIR reached to the Magistrate at 8:45 PM whereas distance is only of one furlong (c) Requisition submitted to Magistrate does not bear FIR Number which was received at 2 PM and FIR is said to be lodged at 12:30 PM. (v) Defence story is more probable in the facts and circumstances of the case (a) Kulhari seized from spot by police (b) Two Gandasis recovered by Investigating Officer not stained with blood (c) Sela recovered from Surjeet Singh was not blood stained (d) Blood found only on the Sela of Munshi Singh (e) Defence Story that Munshi Singh caused injuries in his private defence. On the basis of aforesaid finding, the trial Court held that prosecution has failed to establish the complicity of the accused for commission of the offence of murder of Mukund Singh and causing injuries to Gurdeep Singh PW2, resultantly he acquitted all the accused of the offences with which they were charged, giving rise to the instant appeal at the instance of appellant the State of Rajasthan.
(3.) Mr. K. R. Bishnoi, learned Public Prosecutor for the appellant State of Rajasthan, in support of the appeal has raised the following contentions: I. The finding given by the trial Court for nonproduction of the two witnesses Lal Singh and Patwari Ram is perverse and contrary to law. He has also emphasised that it is not necessary that the prosecution should produce the evidence of all the eye witnesses. II. In the instant case, prosecution has examined two eye witnesses, who are sons of the deceased and it is settled law that the evidence of near and dear relatives cannot be discarded because of relation, though it is true that their evidence is required to be scrutinised minutely but in the instant case the testimony of the two eye witnesses who are near and dear of the deceased is of sterling worth and there is no doubt about their credibility. III. The trial Court has not accepted the evidence of PW1 Hardeep Singh and PW2 Gurdeep Singh and the reason for not believing their evidence is neither cogent nor convincing. IV. It is emphasised by him that the trial Court has committed an error while holding that the possibility of having attacked Munshi Singh with an axe cannot be ruled out. V. According to the learned Public Prosecutor, the impugned judgment and order of acquittal is based on surmises and conjectures. It is also submitted that the trial Court has committed error in holding that the three accused Mewa Singh, Leela Singh and Deva Singh were not present at the scene of occurrence. VI. It is also pointed out by the learned Public Prosecutor that the trial Court has wrongly held that the blows by Munshi Singh and other accused on the body of deceased and Gurdeep Singh were given in self defence.;