Supreme Court Of India

Balbir Singh etc V. State of Rajasthan

Criminal Appeal No. 65 of 1986. 15-01-1997

JUDGMENT

G.N. Ray, J.

There appeals arise out of the common judgment dated October 11, 1985 passed by the High Court of Rajasthan at Jodhpur in D.B. Criminal Appeal No. 788 of 1974, D.B. Criminal Appeal No. 64 of 1975 and D.B. Criminal Appeal No. 819 of 1975 assailing the judgment dated December 7, 1974 passed by the learned Additional Sessions Judge, Churu by which the appellant Balbir Singh, Yashin, Duli Chand and Mohan were convicted by the learned Additional Sessions Judge under Sections 147, 302 read with Section 34 I.P.C. and each of the said accused was sentenced to suffer one year's rigorous imprisonment under Section 147 and imprisonment for life under Section 302. The accused Mohan was further convicted under Section 404 I.P.C. and sentenced to suffer two years rigorous imprisonment and also a fine of Rs. 500/-; in default of payment of fine further rigorous imprisonment for six months. The learned Additional Sessions Judge directed that the sentence would run concurrently.

2. Against the said judgment, three separate appeals were preferred by the convicted accused before the High Court being D.B. Criminal Appeal No. 788 of 1974, D.B. Criminal Appeal No. 64 of 1975 and D.B. Criminal Appeal No. 819 of 1975. All the said appeals were disposed of by the common judgment since impugned in these appeals by dismissing the said appeals and maintaining the conviction and sentences passed by the learned Additional Sessions Judge.

3. On February 24, 1974, P.W.1 Surja Ram the brother of the deceased Ramu lodged F.I.R. with Police Station, Sardarsanar, to the effect that at about 10.00 A.M. on February 24, 1974 there was a rumour in the village Mitasar that a dead body was lying in the Taal located outside the village Mitasar. According to Surja Ram, P.W.3, Musmat Mali had identified the dead body as that of her husband Ramu. When Surja Ram caused enquiry, she told that previous night at about 10 to 10.30 the accused Mohan and another person not known to her, had come to her house. She had served tea to those persons and the said persons had told her husband that a truck of sugar was standing near the Taal and Ramu had taken money with him to purchase the sugar. Her husband Ramu went with the said persons after taking Rs. 200/- with him. Thereafter, Ramu did not return to his house but was found to be dead in the Taal on February 24, 1974.

4. On the basis of the said F.I.R. a case under Section 302 was registered by the police and on February 28, 1974. The police arrested the accused Balmukand, Mohan, Duli Chand, Yashin and Balbir Singh. It may be stated here that the accused Balmukand later on became the approver and deposed as PW.12. According to the prosecution case, on March 3, 1974, at the instance of accused Yashin, Police had recovered a lathi stated to have been used in the crime and on the very same day at the instance of other accused, Police had recovered a dav (sharp edged weapons) alleged to have been used in committing the crime. On March 4, 1974 a test identification parade was held and Musmat Mali had identified the accused Balbir Singh. Balmukand intended to become approver in the case and his statement was recorded under Section 161 Criminal Procedure Code and on March 13, 1974 the statement of Balmukand was recorded under Section 164 Criminal Procedure Code by the concerned Magistrate. Ultimately, on March 29, 1974 Balmukand was declared as approver in one case.

5. All the said four accused faced the trial before the learned Additional Sessions Judge under Sections 147, 302/34, 404 I.P.C. P.W.12 Balmukand, the approver, has deposed to the effect that in the month of January, 1974 the said Balmukand, Mohan, Duli Chand, Yashin along with three other persons, namely, Pranav Ranjan, Kamal Bhomik and Raju Soni, had assembled in the Nehru Park at Sardarsanar for planning to commit decoity. It was planned that initially petty dacoity would be committed and later on they would commit bigger dacoity. In that meeting, Mohan had mentioned about one of his relatives living in the village Mitasar who had lot of silver and money. Mohan had suggested to collect the money from the said relative and to kill him but that plan was not executed because the approver Balmukand had backed out. Balmukand had further deposed that on February 20, 1974 which was a Shivratri day the accused Mohan, Duli Chand and the said Balmukand and Balbir Singh, Parnav Ranjan, Kamal had assembled to celebrate the marriage of Raju Soni in the room of Kamal Bhomik which is located in the Johnson Bulb Factory, Sardarsanar. All of them had a lot of drinks and Raju Soni became tipsy and vomitted. At that time Mohan, Yashin, Duli Chand, the approver Balmukand and Balbir Singh came out of the room of Kamal Bhomik and they had decided to go to Mitasar for committing the dacoity but as they were heavily drunk the approver and Duli Chand made an unsuccessful attempt to start a car standing outside the factory and all the said persons came to the Taal located outside the said factory where they made an attempt to rob one Rajput but nothing was found from him. According to Balmukand, Mohan was armed with a Dav, Yashin with a lathi and Balbir Singh with a pistol. After an hour or so Yashin and Balmukand went to their respective houses but Duli Chand and Balbir Singh had gone to the house of the deceased Ramu situated in the village Mitasar. It is said that Ramu and his wife had served the said persons with tea and so they did not decide to rob Ramu but the said persons had told Ramu that within a day to two they would be getting one truck of sugar and asked him to keep the money ready.

6. The approver further deposed that an February 23, 1974, at about 6.00 P.M. Balmukand, Yashin, Duli Chand and Balbir Singh assembled at the house of other accused Mohan where they had drinks and meal. The approver Balmukand had brought two bicycles one belonging to him and other from Pranav Ranjan and he also brought one coat from him. According to Balmukand, third cycle was arranged from Sirdharit. On the said bicycles they had gone to the village Mitasar at about 10 to 10.30 P.M. The accused Mohan entreated them to commit dacoity on Ramu. Balmukand, Duli Chand and Yashin stayed back at the Taal of the village Mitasar and the accused Mohan and Balbir Singh went to the house of Ramu to bring Ramu there. At the house of Ramu, Mohan and Balbir Singh were treated with tea. Mohan then told Ramu that near the Taal of the village Mitasar a truck load of sugar was standing and Ramu should take money to buy sugar. Thereafter Ramu took a sum of Rs. 200/- and went with them where the three persons were waiting. Duli Chand then told Ramu that a jeep had come and therefore the truck had been sent away. The approver Balmukand had also deposed that thereafter all the said five persons including the approver encircled Ramu and on Mohan saying that work would be started immediately, Balbir Singh had caught hold of Ramu from behind and Duli Chand gave lathi blow to the deceased. The said approver had deposed to the effect that Mohan also started inflicting blows on Ramu and Ramu fell down. The approver at that time had caught hold of the legs of Ramu and Duli Chand inflicted blows with Dav. Mohan tried to cut the throat of Ramu but as he could not do so, Yashin had helped him in cutting the throat of Ramu. According to the approver, the accused Balmukand and the said approver did not inflict any injury to the deceased. The approver further deposed that after seeing that the throat of Ramu is cut, he felt uneasy and he raised a false alarm that some light was coming from the side of village Mitasar. Thereafter, they left the scene of occurrence in great haste and came on the nearby road. The approver further deposed that Mohan had taken out Rs. 200/- from the pocket of deceased Ramu. The approver also deposed that after they reached the road side, they started moving towards Sardarsanar and when they had covered the distance of about 2 miles from the Taal of village Mitasar, they saw a car coming from the village Mitasar. At that time, they came across two persons who were coming from the village Sawai. One of those two persons had asked Mohan as to where from they had been coming and Mohan had replied that they were coming after doing some Sahkari work. As the five persons thereafter returned to Sardarsanar in three separate groups on three bicycles.

7. Mr. Lalit, learned senior counsel appearing for the appellant Balbir Singh in Criminal Appeal No. 65 of 1986, has submitted that the prosecution case was sought to be established on the basis of the deposition of one single witness, namely, the approver Balmukand PW.12. Mr. Lalit had submitted that where a case is sought to be established on the basis of single witness, it must be ensured that such witness is wholly reliable. Mr. Lalit has contended that PW.12 Balmukand is an approver and his evidence is essentially tainted. PW.12 attempted to minimise his role as much as possible and made an attempt to ascribe the roles being played by the other accused. Mr. Lalit has also submitted that the principal act of causing injury on the deceased has been ascribed to Mohan, Yashin and Duli Chand. It has been submitted by Mr. Lalit that PW.12 Balmukand has made an attempt to give an impression that he was an unwilling participant and he had played a very minor role as to make himself a conspirator. According to Mr. Lalit it will be unsafe to rely on such evidence of the approver PW.12. The said PW.12 had also involved two others namely, Pranav Ranjan and Raju Soni although they were not present at the time of commission of the offence. PW.12 had also deposed that he did not get any money out of the dacoity and killing of Ramu. Such evidence cannot be accepted being contrary to the purpose of conspiracy and commission of the offence for collecting money from the deceased. Mr. Lalit has also submitted that there is contradiction about the weapon used to commit the murder of Ramu because both dav and katari were mentioned. So far as the appellant Balbir Singh is concerned, Mr. Lalit has submitted that Balbir Singh had no weapon and he had not inflicted any injury on the person of the deceased. Mr. Lalit has also submitted that it has come out in the evidence that golden ear rings on the person of the deceased had not been removed by the accused. Such fact raises serious doubt whether Ramu was killed for looting the valuables possessed by him at the time of commission of the crime.

8. Mr. Lalit has also submitted that the identification of the appellant Balbir Singh by the widow of the deceased, namely, PW.3 does not inspire confidence and the test identification parade was also not properly held. Mr. Lalit has submitted that P.W.19 had conducted the test identification parade on March 4, 1974. The said PW.19 had deposed that 11 persons were mixed with the under trial and PW.3 Musamat Mali identified the accused Balbir Singh after taking two rounds. The said PW.19 did not record the ages of the persons who were mixed with the accused but he only stated that they were almost of the age of the accused. He also could not identify whether any person mixed with the accused had any scar near the eye and whether any of them was of the height of 5'-6". PW.3 had, however, admitted that the persons who were mixed with the accused were all taller than the accused. Mr Lalit has submitted that a scar on the face of a person is rarely noticed by a village rustic who did not know the person before hand and had only an occasion to see just for sometime on the day of the occurrence. Moreover, unless persons of similar age and similar height and more or less of similar stature and appearance are mixed up with the accused, no reliance should be placed on the identification made in the test identification parade. Therefore, benefit of doubt should be given in favour of the appellant Balbir Singh. Mr. Lalit has also submitted that the deposition of PW.12 is also falsified by the medical evidence. Although PW.12 has deposed that a lathi injury was caused on the deceased but from the medical evidence it transpires that all the injuries noticed on the person of the deceased were incised wounds. Mr. Lalit has also submitted that there is contradiction in the depositions of the Investigating Officer and PW.12 the approver about the date when the approver's statement was recorded. In the aforesaid circumstances, it would not be proper to base conviction against the appellant and other accused on the basis of the testimony of the approver (PW.12).

9. Mr. Goyal, the learned counsel appearing for the other appellants as amicus curiae has also supported the submissions made by Mr. Lalit. Mr. Goyal had submitted that there are contradictions in the deposition of the approver PW.12 with the statements previously made by him. Such fact was noticed by the trial court. The learned counsel has also submitted that the approver Balmukand had made different submissions with regard to the weapons used by the appellants. Mr. Goyal has also submitted that the deposition of the approver PW.12 about the injuries on the chest of the deceased is false and the same is not supported by Dr. S.L. Bundala PW.8. Mr. Goyal has also submitted that it is not unlikely that the approver had himself murdered Ramu and made false statements implicating the accused in order to save himself. Mr. Goyal has submitted that although the approver had surrendered before the police on February 28, 1974, his statement was recorded on March 9 and March 12, 1974. Balmukand has stated to the Police that he was willing to become approver and he made confessional statement before the Magistrate on March 13, 1974. Mr. Goyal has also submitted that there are discrepancies in his depositions and the statements made under Section 164 Criminal Procedure Code. It has also been submitted by Mr. Goyal that according to the prosecution case and also according to the deposition of the approver, the deceased was a friend of Mohan. Five persons including the approver made a conspiracy to kill the deceased to rob only Rs. 200/- and by that process to get Rs. 40/- only in their respective share. It is unbelievable that Mohan should kill his friend only for a sum of Rs. 40/- when he had gone to the house of the deceased and was noticed by the wife of the deceased. The learned counsel has submitted that the prosecution case could not have been established beyond reasonable doubt and the conviction and sentences passed against the appellants are liable to be set aside.

10. After giving our careful consideration to the facts and circumstances of the case and the judgments passed by the courts below, it appears to us that the approver has not made statements to exculpate him but has clearly deposed that he was party to the conspiracy and on the date of the incident he was waiting near the Taal when Balbir Singh and Mohan had been sent to bring Ramu with money so that Ramu would be murdered and the money would be looted. He had also deposed that he himself did not inflict injury but he caught hold of the legs of the deceased when the deceased was done to death. So far as the identification of Balbir Singh by the widow of the deceased is concerned, we do not think that such identification is to be discarded simply because the height of the accused was less than the persons with whom he was mixed up or he had a scar mark. Faten Lal (PW.19) has deposed that the persons with whom the accused Balbir Singh was mixed up were almost of the same age and after going two rounds, the widow had identified Balbir. The contention that no reliance shall be placed on the evidence of approver because the golden ear rings were not taken away by the accused even though they had committed the murder for gain cannot be accepted. It may be indicated here that because PW.12, the approver had raised an alarm that some lights were seen from the village side, the accused had hurriedly left the place of occurrence and Mohan had only removed Rs. 200/- from the pocket of the deceased. The deposition of the approver Balmukand that a car came from the side of Loonkaransar and two persons also saw them and one of such persons enquired of Mohan as to wherefrom they had been coming, stands fully corroborated from the testimony of PW.4 Bega Ram and PW.5 Manoj Singh. Both the witnesses have stated that they alighted from the bus at village Sawai. After covering some distance from coming to their village Mitasar, they saw five persons. At that time, one car came from the side of Loonkarnsar. They had also deposed that the said persons had three bicycles with them. The said witnesses have also deposed that they could identify Mohan and Yashin but could not identify rest of three persons because the others were little away from them.

11. In our view, the deposition of the approver PW.12 about the injuries caused on the person of the deceased is substantially corroborated from the medical evidence and absence of any injury caused by the blunt weapon of lathi on the person of the deceased cannot be held to be such a contradiction in the deposition of P.W.12 for which such deposition is liable to be discharged. We have already indicated that five persons were seen by PWs 4 and 5. Such evidence tallies with the deposition of PW 12 that besides the approver, there were other four accused. The deposition of PW 12 also stands corroborated that PW 4 and 5 could identify Mohan and Yashin and had enquired of them as to from where they had been coming then. Such deposition fully lends support to the deposition given by PW 12. The High Court has indicated cogent reasons for affirming the conviction and sentences passed against the appellants and we do not find any reason to interfere with the concurrent findings made by the courts blow against the appellants. These appeals, therefore, fail and are dismissed. The appellants were released on bail during the pendency of the appeals. They are directed to be taken into custody to serve out the sentence passed against them. Their bail bonds stand cancelled.

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