Rajasthan High Court - Jaipur
Sube Singh vs State Of Rajasthan Through Pp on 9 May, 2019
Author: Goverdhan Bardhar
Bench: Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 1264/2016
Sube Singh S/o Shri Sonaram Jat, R/o Shekhpura, Tehsil
Kotputli, District Jaipur Rajasthan At Present In Central Jail
Jaipur
----Appellant
Versus
State Of Rajasthan Through P.p.
----Respondent
For Appellant(s) : Mr. B.R. Choudhary For Respondent(s) : Mrs. Alka Bhatnagar, P.P.
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA HON'BLE MR. JUSTICE GOVERDHAN BARDHAR Judgment / 09/05/2019 :
Per : Kanwaljit Singh Ahluwalia, J. (ORAL) :
Sube Singh, along with his wife - Brahma Devi and son
- Surendra Singh was tried by the Court of Additional Sessions Judge, Kotputali District Jaipur for committing murder of his brother - Hawa Singh and niece -Saroj.
The trial Court, vide its impugned judgment dated 17.09.2016, acquitted Brahma Devi and Surendra Singh of offences punishable under Sections 302/34 and 323 of the Indian Penal Code.
However, the said Court held the appellant- Sube Singh guilty of offences punishable under Sections 302 and 323 of the Indian Penal Code and under Section 4/25 of the Arms Act. (Downloaded on 29/06/2019 at 12:05:20 AM)
(2 of 10) [CRLA-1264/2016] Vide a separate order of even date, the trial Judge sentenced the appellant as under :-
"For offence u/s. 302 I.P.C. : The appellant was sentenced to undergo life imprisonment and to pay a fine of Rs.5000/- and in default of payment of fine to further undergo six months simple imprisonment.
For offence u/s. 323 I.P.C. : The appellant was sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs.800/- and in default of payment of fine to further undergo one month's simple imprisonment.
For offence u/s. 4/25 of the Arms Act : The appellant was sentenced to undergo two years rigorous imprisonment and to pay a fine of Rs.1000/- and in default of payment of fine to further undergo three months simple imprisonment.
All the sentences were ordered to run concurrently."
Aggrieved against his conviction and sentence, the appellant has preferred present D.B. Criminal Appeal No.1264 of 2016 praying therein that the impugned judgment of conviction dated 17.09.2016 rendered by the Court of Additional Sessions Judge, Kotputali District Jaipur Rural, in Sessions Case No.34/2011, be set aside, along with the separate order of sentence pronounced on even date.
The State of Rajasthan had preferred D.B. Criminal Leave to Appeal No.19 of 2017 to assail the acquittal of Brahma Devi and Surendra Singh, wife and son of the principal accused appellant -Sube Singh respectively.
Similarly, Bharpai Devi wife of deceased - Hawa Singh and the mother of Saroj, both deceased, had filed D.B. Criminal Appeal No. 1342 of 2016.
A Coordinate Bench of which one of us (Kanwaljit Singh Ahluwalia, J.) was a Member on 06.02.2017 had dismissed D.B. (Downloaded on 29/06/2019 at 12:05:20 AM) (3 of 10) [CRLA-1264/2016] Criminal Leave To Appeal No.19 of 2017 and D.B. Criminal Appeal No.1342 of 2016 preferred by the complainant.
The case of the prosecution has been aptly summed up in the charges formulated against the appellant.
It was stated in the first charge that the appellant- Sube Singh on 06.07.2011 at about 09:00 P.M. in Village Shekharpur at his residence with the intention to cause death picked up a fight with his brother - Hawa Singh. Hawa Singh was caught hold by Surendra and Brahma Devi, and Sube Singh caused knife injuries to his brother - Hawa Singh. Meanwhile, when Saroj daughter of Hawa Singh, came to rescue him, she was also caused injuries.
Similarly, second charge stated that when Bharpai Devi (PW-1) wife of Hawa Singh, came forward to rescue her husband and daughter, she was also caused injuries by the appellant.
For causing murder of Hawa Singh & Saroj and injuries to Bharpai Devi (PW-1), the appellant was charged for commission of offences punishable under Sections 302 and 323 of the Indian Penal Code, and for keeping knife without any license in his possession, he was charged for commission of offence punishable under Section 4/25 of the Arms Act.
The appellant pleaded not guilty and claimed trial. The prosecution, in order to secure conviction of the appellant, examined as many as seventeen witnesses, namely Bharpai Devi (PW-1), Sona Ram (PW-2), Shravan Devi (PW-3), Jitendra (PW-4), Rajpal (PW-5), Vijay Singh (PW-6), Rahul (PW-7), Dr. Ghanshyam Gehlot (PW-8), Dr. Pramod Singh (PW-9), Shankar Lal (PW-10), Naresh Singh (PW-11), Geeta Devi (PW-12), Mukhram (PW-13), Ram Kunwar (PW-14), Sohan Lal (PW-15), (Downloaded on 29/06/2019 at 12:05:20 AM) (4 of 10) [CRLA-1264/2016] Shri Chand (PW-16) and Sanwarmal Nagaura (PW-17) respectively.
Out of all above said witnesses, Bharpai (PW-1) wife of Hawa Singh, Sona Ram (PW-2) and Shravan Devi (PW-3) the parents of accused-appellant & deceased - Hawa Singh, appeared as eye-witnesses.
Bharpai Devi (PW-1) supported the case of the prosecution, whereas Sona Ram (PW-2) and Shravan Devi (PW-3), the parents of the appellant, turned hostile to the prosecution.
Jitendra (PW-4) and Rahul (PW-7) are sons of the deceased. They were examined to corroborate the testimony of Bharpai Devi (PW-1) Rajpal (PW-5), Vijay Singh (PW-6) and Jitendra (PW-4) attested the Inquest reports of Hawa Singh and Saroj.
Dr. Ghanshyam Gehlot (PW-8) being Medical Officer at Government B.D.M. Hospital, Kotputali, medico-legally examined Bharpai Devi (PW-1) vide Exhibit-P/12. He was also a Member of the Medical Board along with Dr. Pramod Singh (PW-9). The said Doctors conducted autopsy on the dead-bodies of Hawa Singh and Saroj. The Post Mortem Reports have been proved on record as Exhibit-P/14 & Exhibit-P/15 respectively.
Constable - Shankar Lal (PW-10) proved arrest memo and recovery of weapon vide Exhibit-P/16 and Exhibit-P/21 respectively.
Constable - Naresh Singh (PW-11) carried articles to the Office of the State Forensic Science Laboratory, Rajasthan, Jaipur and deposited the same vide Exhibit-P/23.
Lady Constable - Geeta Devi (PW-12) proved arrest memo of Brahma Devi wife of Sube Singh vide Exhibit-P/18. (Downloaded on 29/06/2019 at 12:05:20 AM)
(5 of 10) [CRLA-1264/2016] Constable - Mukhram (PW-13) proved recovery of cover of weapon from the acquitted accused - Surendra Singh vide Exhibit-P/20.
Constable - Ram Kunwar (PW-14) proved arrest memo (Exhibit-P/16) of appellant - Sube Singh.
Sohan Lal (PW-15) being Incharge of the Police Station at the relevant time, proved charge-sheet submitted against the appellant.
Shrichand (PW-16) had attested the site-plan (Exhibit- P/2) and the memo (Exhibit-P/24), whereby blood stained earth was picked up from the spot.
Sanwarmal Nagaura (PW-17) being Investigating Officer, proved various facets of the investigation.
The criminal proceedings, in the present case, were set into motion on the basis of the parcha-bayan/statement (Exhibit- P/1) made by Bharpai Devi (PW-1) before Dy.S.P. Sanwarmal Nagaura (PW-17).
The parcha-bayan/statement (Exhibit-P/1) made by Bharpai Devi (PW-1) leading to registration of impugned F.I.R. bearing No.478/2011 registered at Police Station Kotputali District Jaipur Rural, when translated into English reads as under :-
""Statement of Bharpai Devi wife of Hawa Singh by caste Jat, aged 48 years resident of Shekhpur, Police Station Kotputali, District Jaipur, stated that my husband is having another brother, elder being Sube Singh and Younger brother is my husband Hawa Singh. Sube Singh along with his children resides at Hyderabad. On 04.07.2011, he along with his children had returned to the native house at Shekhupur. We are having land dispute with Sube Singh last from the so many days. We have been given less land, but Sube Singh is having more land to his share, due to this we are having dispute.(Downloaded on 29/06/2019 at 12:05:20 AM)
(6 of 10) [CRLA-1264/2016] Today on 06.07.2011 at about 9.00 pm my husband and Sube Singh were having talks over land dispute. Meanwhile, Sube Singh, his son Surendra Singh his wife Brahma Devi and Manu Ram lost their temper (vkos'k esa vk x,). Manu Ram handed over a knife to Sube Singh and Sube Singh caused knife blows to my husband and my daughter Saraj. When I intervened I was also caused knife blows, due to which I suffered injuries. Due to causing of injuries with a knife, my husband and my daughter became unconscious and died at the spot. Brahma Devi her son Surendra Singh and Manu Ram were helping (lg;ksx dj jgs Fks). Sube Singh. Thus, above all four persons together have killed my husband-Hawa Singh and my daughter-
Saroj and caused injuries to me."
Dr. Ghanshyam Gehlot (PW-8) who proved injuries suffered by Bharpai Devi (PW-1) has deposed in the Court that on 06.07.2011 at about 10:30 P.M. he had examined Bharpai Devi (PW-1) wife of Hawa Singh, aged 48 years, and in the injury report, (Exhibit-P/12), he had noted following six injuries :-
"1. Bruise 10 x 2 cm on right forearm posteriorly.
2. Lacerated wound 2 x 1 ½ cm x muscle deep occipital region.
3. Lacerated wound 1 x ½ cm on left head dorsally.
4. Bruise 8 x 2 cm on right thigh posteriorly.
5. Bruise 3 x 1 ½ cm on left arm.
6. Bruise 8 x 1 ½ com on right side of hip joint."
A perusal of the injury report (Exhibit-P/12) reveals that Bharpai Devi had suffered injury No.2 on the occipital region. All the above said six injuries were declared as simple in nature.
The Post Mortem Report (Exhibit-P/14) in respect of Hawa Singh, proved that he had suffered incised stab injuries, which were four in number. Injury No.1 was in the chest. Injury No.2 was in the abdomen and the Injury Nos.3 and 4 were on the left hand and right palm respectively.
(Downloaded on 29/06/2019 at 12:05:20 AM)
(7 of 10) [CRLA-1264/2016] As per opinion of the Board of Doctors, the cause of death of Hawa Singh was shock due to hemorrhagic injury, caused to the heart.
Saroj, aged nineteen-years daughter of Hawa Singh deceased and Bharpai Devi (PW-1), had suffered one incised injury in the chest. As a result thereof, her left lung and the heart were damaged.
As per opinion of the Board of Doctors given in the Post Mortem Report (Exhibit-P/15), the cause of death of Saroj was hemorrhagic shock due to injury to the heart.
Bharpai Devi (PW-1) complainant, has reiterated the version as to what was stated by her in the statement (Exhibit- P/1) made to the Police. She deposed in the Court that Sube Singh is elder brother of her husband - Hawa Singh. Sube Singh was residing along with his family at Hydrabard, whereas she was residing along with her family in the native village with her husband. On 04.07.2011 Sube Singh, his wife Brahma Devi and son Surendra Singh had come from Hydrabad. On 06.07.2011 regarding partition of the land both brothers - Sube Singh and Hawa Singh were having talks in the presence of her father-in-law
- Sona Ram (PW-2). She has stated that she was standing near them and was hearing their conversation. Her daughter- Saroj was also there. Meanwhile, verbal dual had occurred. Sube Singh was armed with khukhri (knife). Brahma Devi and Surendra Singh caught hold of Hawa Singh. Sube Singh gave knife blow on the chest and abdomen of her husband - Hawa Singh. Saroj intervened, Sube Singh also caused knife blow in her chest. She came forward and she was also caused injuries. (Downloaded on 29/06/2019 at 12:05:20 AM)
(8 of 10) [CRLA-1264/2016] As noted earlier, the parents of the deceased - Hawa Singh and appellant - Sube Singh, have turned hostile to the prosecution. They having lost one son have not supported the case of prosecution to save another son.
Jitendra (PW-4) has stated that he was studying at the relevant time at Jaipur. Upon receipt of a telephonic call from one Jagat Singh about the occurrence, he reached at the hospital where his mother narrated the entire incident.
Having taken note of the prosecution case, in brief, we will proceed to deal with the arguments raised by the learned counsel appearing for the accused-appellant.
Mr. B.R. Choudhary, ld. counsel appearing for the accused-appellant, has submitted that in the present case, the investigation is tainted, the recovery of weapon is padding and, thus, the prosecution case is liable to be thrown at the outset. Counsel has further submitted that the solitary eye-witness- Bharpai Devi (PW-1) has not been believed, qua acquitted accused
- Brahma Devi and Surendra Singh. Therefore, implicit reliance cannot be placed upon her testimony to uphold the conviction of appellant - Sube Singh.
In alternative, ld. counsel appearing for the accused- appellant, has submitted that since it has come in the statement (Exhibit-P/1) of Bharpai Devi (PW-1) that both the brothers were having discussions regarding partition of the land, occurrence, in the present case, was not pre-planned, it happened without any premeditation, on the spur of the moment, thus, Sube Singh for having caused injuries, cannot be held liable for offence culpable homicide amounting to murder.
Counsel has prayed for conversion of the offence. (Downloaded on 29/06/2019 at 12:05:20 AM)
(9 of 10) [CRLA-1264/2016] Mrs. Alka Bhatnagar, ld. Pubic Prosecutor appearing for the State, has supported the impugned judgment rendered by the trial Court.
Having heard the learned counsel appearing for the parties, we are of the firm opinion that the presence of Bharpai Devi (PW-1) at the spot is stamped, she has suffered injuries in the alleged occurrence, the occurrence, in the present case, had taken place on 06.07.2011 at 09:00 P.M., Bharpai Devi (PW-1) was medico-legally examined by Dr. Ghanshyam Gehlot (PW-8) on 06.07.2011 at 10:30 P.M. and on the same day, i.e. on 06.07.2011 at 11:00 P.M. the statement (Exhibit-P/1) of Bharpai Devi (PW-1) was recorded at B.D.M. Hospital, Kotputali, Jaipur Rural.
In the present case, the impugned F.I.R. is prompt. It contains spontaneous version. Bharpai Devi (PW-1) is expected to be present in her house, along with her husband and daughter. Therefore, her presence at the spot is natural and probable.
Having held that the presence of Bharpai Devi (PW-1) at the spot is stamped, as she had suffered injuries in the alleged occurrence, we are of the view that version given by her is truthful. In the statement (Exhbit-P/1), Bharpai Devi (PW-1) has stated that Sube Singh lost his temper (vkos'k esa vk x,), therefore, in the present case, the occurrence had taken place on the spur of the moment and, therefore, rightly the trial Judge had not applied Section 34 of the Indian Penal Code, qua the acquitted accused - Brahma Devi and Surendra Singh.
Non-application of Section 34 of the Indian Penal Code in no way shall impeach the credibility of the testimony of Bharpai (Downloaded on 29/06/2019 at 12:05:20 AM) (10 of 10) [CRLA-1264/2016] Devi (PW-1) Her testimony inspires confidence. The same is free from any blemish of contradictions and discrepancies.
In the present case, ocular version of Bharpai Devi (PW-1) is duly corroborated by the medical evidence. There is no doubt that the implicit reliance can be placed upon the testimony of Bharpai Devi (PW-1) and, hence, the trial Court has rightly convicted and sentenced the appellant on the basis of statement (Exhibit-P/1) made by Bharpai Devi (PW-1).
Now we shall deal with the last argument raised by ld. counsel appearing for the accused-appellant for conversion of offence.
The ld. counsel appearing for the accused-appellant has submitted that since the occurrence, in the present case, has taken place on the spur of the moment without any premeditation, the Court should convert offence from Section 302 I.P.C. to offence Section 304 Part-I, I.P.C.
We find no merit in this submission made by ld. counsel appearing for the accused-appellant.
Four injuries were caused to Hawa Singh. Thereafter, his daughter - Saroj intervened. She was also caused injuries. It is a case of two murders. Bharpai Devi (PW-1) wife of deceased and mother of Saroj, who came forward to rescue them was also caused injuries, therefore, the appellant is not entitled for conversion of the alleged offence.
Thus, taking totality of circumstances, the present appeal, being devoid of merits, is dismissed. (GOVERDHAN BARDHAR),J (KANWALJIT SINGH AHLUWALIA),J ASHOK (Downloaded on 29/06/2019 at 12:05:20 AM) Powered by TCPDF (www.tcpdf.org)