Rajasthan High Court - Jodhpur
Karni Singh And Anr vs State Of Rajasthan on 28 May, 2024
Bench: Pushpendra Singh Bhati, Yogendra Kumar Purohit
[2024:RJ-JD:23104-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 114/1991
Karni Singh And Anr
----Appellant
Versus
State Of Rajasthan
----Respondent
Connected With
D.B. Criminal Appeal No. 82/1991
Munshi Ram And Ors
----Appellant
Versus
State Of Rajasthan
----Respondent
For Appellant(s) : Mr. D.L. Mothsara,
Ms. Avya Gupta, Amicus Curiae
For Respondent(s) : Mr. B.R. Bishnoi, PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE YOGENDRA KUMAR PUROHIT
Judgment
Reserved on 21/05/2024
Pronounced on 28/05/2024
Per Dr. Pushpendra Singh Bhati, J:
1. These criminal appeals under Section 374(2) Cr.P.C. have
been preferred claiming, in sum and substance, the following
reliefs:
"It is therefore, respectfully prayed that this appeal may
kindly be allowed, the judgment and sentence passed by the
learned trial court may be set aside and the accused
appellants may be acquitted of all the charges levelled against
them."
[2024:RJ-JD:23104-DB] (2 of 13) [CRLA-114/1991]
2. The matters pertain to an incident which occurred in the year
1988 and the present appeals have been pending since the year
1991.
3. The accused-appellants laid a challenge to the judgment of
conviction and order of sentence dated 21.02.1991 passed by the
learned Additional Sessions Judge, Nohar, in Sessions Case
No.13/89 (State of Rajasthan Vs. Munshiram & Ors.), whereby the
accused-appellants have been convicted and sentenced as below:
Accused-appellant Karni Ram (Cr.Appeal No.114/1991):
Offence under Sentence Fine
Section
148 IPC Two Months' R.I. Rs.1000/-, in default of
which, to further undergo
One Months' R.I.
302 read with Life Imprisonment Rs.2000/-, in default of
Section 149 IPC which, to further undergo
One Month's R.I.
323 read with Three Months' Rs.1000/-, in default of
Section 149 IPC R.I. which, to further undergo
One Month's R.I.
Accused-appellants Mahendra s/o Arjun Ram & Arjun s/o
Surja Ram (Cr.Appeal No.82/1991):
Offence under Sentence Fine
Section
148 IPC Two Months' R.I. Rs.1000/-, in default of
which, to further undergo
One Months' R.I.
302 read with Life Imprisonment Rs.2000/-, in default of
Section 149 IPC which, to further undergo
One Month's R.I.
323 read with Three Months' Rs.1000/-, in default of
Section 149 IPC R.I. which, to further undergo
One Month's R.I.
[2024:RJ-JD:23104-DB] (3 of 13) [CRLA-114/1991]
3.1. Accused-appellant Mahendra s/o Ram Chander (Criminal
Appeal No.114/1991) had expired, as reflected in the order dated
20.09.2022, and thus, the appeal qua him, already stood abated.
In the said order itself, it has also been recorded that accused-
appellants Munshi Ram, Bhagu Ram (in Criminal Appeal
No.82/1991) had also expired, and therefore, the appeal qua them
as well stood abated. As regards, accused-appellant Sher Singh
(in Criminal Appeal No.82/1991), as reflected in the order dated
29.09.2021, he had also expired on 01.07.2021, and thus, the
appeal No.82/1991 qua the said accused-appellant also stood
abated on 29.09.2021. In that view of the matter, it is not
considered necessary to make a mention about conviction and
sentence qua them (deceased accused-appellants), as awarded by
the learned Trial Court vide the impugned judgment, in the
present adjudication.
4. Brief facts of the case, as placed before this Court by Mr. D.L.
Mothsara, learned counsel for the appellants (Criminal Appeal
No.82/1991) and Ms. Avya Gupta, learned Amicus Curiae for the
appellants (Criminal Appeal No.114/1991), are that on 04.10.1988
at around 7:45 a.m., one Ran Singh (complainant) submitted an
oral information before the Police Station, Bhadra, stating that on
03.10.1988, while the complainant and his brother Mange Ram
reached Anopshahar Taal with the cattle that were grazing, his
(complainant's) younger brother Raisingh alongwith Munshiram
(son of Mange Ram) arrived, and stayed with the complainant and
Mange Ram.
[2024:RJ-JD:23104-DB] (4 of 13) [CRLA-114/1991]
4.1. On the same day, at around 9:00/9:30 in the night, while all
of them, after having dinner, were having talks with each other, at
that time, from the side of Village Anoopshahar, accused-
Munshiram came armed with axe, alongwith other persons,
namely, Arjun, Bhagu, Mahendra and Shersingh, and two other
anonymous persons, armed with lathis also arrived there.
4.2. At the said place, when accused-Munshi Ram inflicted axe
blow upon Mange Ram, which attack was tried to be resisted by
Mange Ram, on which Sher Singh inflicted lathi blows on the back
and ribs of Mange Ram; the said act was intervened by Raisingh
and Munshiram, whereupon Mahendra caught hold of them and
took them away; thereupon, all the accused persons started
beating Mange Ram the deceased, which act also was intervened
by the complainant party.
4.3. While the said act being continued by the accused persons,
the deceased, begged the accused persons to stop the same, but
after a while, the deceased became unconscious, whereupon the
accused persons stopped their act of beating. Thereafter,
complainant's brother Hari Singh alongwith Dharmpal arrived at
the place of incident, but, by that time, Mange Ram died.
4.4. It was also stated by the complainant that the accused
persons committed the crime in question, owing to the prolonged
enmity, being continued for 7-8 years, between the complainant's
deceased brother and accused. As per the complainant, by the
time, the incident in question had happened, it was late night, and
therefore, the incident was reported to the police, the next day i.e.
04.10.1988.
[2024:RJ-JD:23104-DB] (5 of 13) [CRLA-114/1991]
5. On the basis of the aforementioned information, a case was
registered and the investigation accordingly commenced,
whereafter, two unknown persons were arrested, followed by Test
Identification Parade being conducted on 17.11.1988, during the
course of which, the two eye witnesses, identified the accused-
appellants, namely, Karni Singh and Mahendra (since deceased).
After investigation, the police filed charge-sheet against the
accused persons for the offences under Sections 302, 147, 148,
149 & 323 IPC.
6. The learned Trial Court framed the charges against some of
the accused persons for the aforesaid offence, while discharging
Bhoop Singh, Sahab Singh & Mangtoo Ram of the charges against
them, and took cognizance against the accused persons under the
aforesaid provisions of law; thereafter, owing to the offences with
which the accused persons were charged, the matter was
remanded for Sessions Trial, and the trial accordingly commenced.
7. During the course of trial, the evidence of 13 prosecution
witnesses were recorded and certain documents were exhibited on
behalf of the prosecution; whereafter, the accused-appellant was
examined under Section 313 Cr.P.C., in which the accused-
appellants pleaded innocence and their false implication in the
criminal case in question.
8. Thereafter, upon hearing the contentions of both the parties
as well as considering the material and evidence placed on record,
the learned Trial Court, convicted and sentenced the accused-
appellants, as above, vide the impugned judgment of conviction
and order of sentence dated 21.02.1991, against which the
[2024:RJ-JD:23104-DB] (6 of 13) [CRLA-114/1991]
present appeal has been preferred on behalf of the accused-
appellants.
9. In D.B. Criminal Appeal No. 114/1991, learned counsel
for the accused-appellant submitted that the accused-appellant
was not named in the FIR and also no description of his face, body
etc. was recorded at the time of registration of the complaint. It
was further submitted that the alleged incident took place at
around 9 or 9:30 PM and as per the prosecution story, the fire was
insufficient as far as the source of light was concerned; apart
therefrom, there was no other source of the light, and therefore,
the complainant's deposition that he saw the appellant at the time
of the alleged incident is not worthy of being believed.
9.1. It was also submitted that the appellant was not kept under
baparda because he was taken for effecting recovery, in pursuance
of his information given under Section 27 of the Indian Evidence
Act, 1872, and thereafter, the Test Identification Parade (TIP) was
conducted after unexplained delay of 10 days and for the said
Parade, 5 persons were randomly selected from the jail, and
therefore, the entire prosecution case is vitiated. In support of
such submissions, learned counsel relied upon the judgment
rendered by the Hon'ble Apex Court in the case of Gireesan Nair
& Ors. Etc. Vs State of Kerala (Criminal Appeal Nos. 1864-
1865/2010, decided on 11.11.2022).
9.2. It was further submitted that lathi recovered from the
accused-appellant was sent for FSL and the FSL report (EX.P/54)
did not speak of bloodstains. Therefore, the said lathi was not
[2024:RJ-JD:23104-DB] (7 of 13) [CRLA-114/1991]
used to kill the deceased, which clearly substantiates the fact that
the accused-appellant was not involved in the crime in question.
9.3. It was also submitted that there were two eye witnesses in
the present case i.e. PW. 1-Ran Singh & PW. 6-Rai Singh, both
were the interested witnesses because they are brothers of the
deceased. It was further submitted that PW.1 stated in his
testimony that at the time of TIP there were 20-30 persons, but
as per Ex.P/62, only 5 persons were there, and at the time of
complaint, only 2 persons were said to have been involved in the
crime in question, but there is no specific description made in this
regard, and therefore, the eye witnesses' statements are
contradictory, and are thus, not reliable.
9.4. It was also submitted that the accused-appellant was having
no enmity with the deceased; only Munshi Ram and Mange Ram
had enmity between them, and there was no prior dispute
subsisting between the accused-appellant and the deceased, and
therefore, it is clear that there was absence of motive/intention on
the part of the accused-appellant, to commit the murder of the
deceased.
9.5. It was further submitted that at the time of commission of
the offence in question, the accused-appellant was 20 years old,
and at present, his age is about 56 years, and he is on bail as the
substantive sentence awarded to the accused-appellant had been
suspended by this Hon'ble Court on 26.07.1991; the appellant
served the custody of total 9 months and 21 days, in pursuance
of the impugned judgment of conviction and order of sentence.
[2024:RJ-JD:23104-DB] (8 of 13) [CRLA-114/1991]
10. In D.B. Criminal Appeal No. 82/1991, learned counsel for
the accused-appellants submitted that the investigating agency
did not recover anything from the accused-appellants. It was
further submitted that there is nothing on record which could
substantiate that at the place of incident in question, on the
relevant day, the light was sufficient, which enabled the eye
witnesses to see the accused-appellants.
10.1. It was also submitted that the eye witnesses' statements
were not corroborated by the medical evidence, and the version of
the prosecution is clearly doubtful. It was further submitted that
the accused-appellants did not have motive/intention to cause the
murder of the deceased.
10.2. It was also submitted that the accused-appellants had been
falsely implicated in connection with the crime in question and the
learned Trial Court also failed to consider that the accused-
appellants were not involved in the crime in question.
11. On the other hand, the learned Public Prosecutor, opposed
the aforesaid submissions made on behalf of the accused-
appellants, while submitting in both appeals that the accused-
appellants were fully involved in the crime in question and the
entire evidence was duly considered and appreciated by the
leaned Trial Court, before passing the impugned judgment of
conviction.
11.1. It was further submitted that lathi was recovered from the
appellant-Karni Singh and blood stains were also found on that
lathi, therefore it cannot be said that the appellant-Karni Singh is
not involved in crime in question.
[2024:RJ-JD:23104-DB] (9 of 13) [CRLA-114/1991]
11.2. It was also submitted that the TIP was conducted in
presence of the Magistrate wherein the both eye witnesses duly
identify appellant-Karni Singh, and the said TIP was conducted as
per the procedure provided under the law.
11.3. It was further submitted that both the eye witnesses i.e. PW.
1 & PW. 6 stated the entire incident correctly and no contradiction
was found in their statements. It was also submitted that the
deceased sustained 24 injuries, which were sufficient to cause
death. Therefore, the learned Trial had rightly convicted the
accused-appellants under Section 302 IPC.
12. Heard learned counsel for the parties as well as perused the
record of the case alongwith judgment cited at the Bar.
13. This Court observes that there were two eye witnesses i.e.
P.W. 1-Ran Singh and P.W. 6- Rai Singh. P.W.1 stated that that
after dinner at around 9 or 9:30 PM. accused Munsi Ram, Arjun
Ram, Bhagu Ram, Sher Singh, Mahendra and two other persons
came from the side of Anupshahar; Munshi Ram was carrying the
axe (Kulhadi), while the other accused-appellants were carrying
lathis. He further stated that firstly, Mange Ram attacked to
deceased by axe, and then other accused attacked the deceased;
as per the said witness, when he intervened such act, the accused
also caused injury to him, while they continued to beat the
deceased; similar testimony was given by the other eye witness
i.e. PW.6.
13.1. This Court further observes that both the eye witnesses had
made similar depositions, and no contradiction has been recorded
as regard the said depositions. This Court also observes that
[2024:RJ-JD:23104-DB] (10 of 13) [CRLA-114/1991]
P.W.10-Dr. Mahaveer Prasad, who conducted the postmorten of
the deceased, stated that total 24 injuries were caused to the
deceased as per the reports i.e. Ex.P/25 and Ex.P/26. Therefore,
the same corroborates with the statements of the witnesses, and
thus, there was no contradiction in the same. .
14. This Court further observes that two accused-appellants i.e.
Karni Singh and Mahendra (since deceased) were also involved in
the crime in question, but their identity was not known at the time
of registration of the case; thereafter, the police arrested the
accused Karni Singh and Mahendra and filed an application
seeking permission to conduct Test Identification Parade (TIP) i.e
Ex.P/62 before the Munsif & Judicial Magistrate, Nahar, and the
same was accepted to be done in the presence of the said
Magistrate. Thereafter, on 17.11.1988, in Jail, Bhadra, the TIP was
conducted, and P.W.1 identified only accused-appellant-Karni
Singh and P.W.6 identified both the accused-appellants- Karni
Singh and Mahendra.
14.1. This Court also observes that the TIP was conducted in the
presence of Munsif & Judicial Magistrate, Nahar and during trial,
he was also examined as P.W. 12, wherein he had stated that the
entire procedure prescribed under the law was followed at the
time of TIP, and the accused-appellent-Karni Singh was identified
by both the eye witnesses i.e. PW.1 & PW.6,.
14.2. This Court further observes that as per the record, there is
nothing which could show that PW.1 & PW.6 knew accused-
appellant-Karni Singh prior to the TIP, and the said TIP was not as
such delayed, and the same was supported by PW. 12 who is the
[2024:RJ-JD:23104-DB] (11 of 13) [CRLA-114/1991]
Judicial Magistrate, in whose presence the TIP was lawfully
conducted. Therefore, there was no legal lacuna in the TIP so as
to vitiate the trial, while giving any benefit to the appellant-Karni
Singh.
15. This Court also observes that PW.4- Hari Singh, in his
statement, deposed that he received the information from his
younger brother and stated that the accused i.e. Munsi Ram,
Arjun Ram, Bhangu Ram, Sher Singh, Mahendra and two other
accused had beaten the deceased, and that, the statement of
PW.4 when conjointly seen with the statements of PW.1 & PW.6,
there is no apparent contradiction in the same, rather the said
depositions supported the prosecution story, in its entirety.
16. This Court further observes that PW.2-Sultan and PW.3-
Netram stated in their testimonies that they saw the police
authorities and Doctor at the place of incident, and that, they put
signatures on Naksha Mauka (Ex.P/2) Surate Haal Lash (Ex.P/3)
Panchayatnama (Ex.P/4), which clearly shows that the aforesaid
proceeding was undertaken in the presence of the said witnesses.
17. This Court also observes that PW.11- Bhagwan Das who
investigated the case and as per the information given by the
accused-appellant-Karni Singh, the recovery of lathi was made
and the same was taken into custody and marked with seal as
Ex.P/44.
18. This Court further observes that there existed prior enmity
between the accused and the deceased and therefore, the
accused-appellants with common object came at the place of
incident, armed with the weapon i.e. axe and lathis respectively,
[2024:RJ-JD:23104-DB] (12 of 13) [CRLA-114/1991]
and thereafter, gave beatings to the deceased, which continued for
long, and resulting into total 24 injuries sustained by Mange Ram,
who succumbed to the same and died. The eye witnesses PW.1
and PW. 6 intervened in the said act, resulting into 3 injuries that
were caused to PW.1, and therefore, the entire action clearly
shows the intention on the part of the accused-appellants to
commit murder of the deceased.
19. Thus, looking into the overall evidence including
documentary as well as oral evidence available on record, this
Court does not find any scope of interference in the impugned
judgment of conviction and order of sentence passed by the
learned Trial Court as the same does not suffer from any legal
infirmity, more particularly, in light of the fact that the impugned
judgment of conviction was passed after duly considering the
entire evidence and material placed on record before the learned
Trial Court. Therefore, both appeals deserve to be dismissed and
conviction of the surviving accused-appellants deserves to be
upheld.
20. Consequently, the impugned judgment of conviction and the
order of sentence dated 21.02.1991 passed by learned Trial Court
is upheld and the instant appeals are accordingly dismissed.
21. The accused-appellants are on bail in pursuance of suspension
of their sentence by this Hon'ble Court. Their bail bonds are
cancelled and sureties are forfeited; the surviving accused-
appellants are directed to be taken into custody forthwith, to be
sent to the concerned Jail to undergo the remaining period of the
sentence awarded to them by the learned Trial Court vide the
[2024:RJ-JD:23104-DB] (13 of 13) [CRLA-114/1991]
impugned judgment of conviction and order of sentence. The
record of the learned Trial Court be sent back forthwith. All
pending applications stand disposed of.
22. This Court is thankful to Ms. Avya Gupta, who has rendered
her assistance as Amicus Curiae in D.B. Criminal Appeal No.
114/1991, on behalf of the accused-appellants, in the present
adjudication.
(YOGENDRA KUMAR PUROHIT),J (DR.PUSHPENDRA SINGH BHATI),J
SKant/-
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