Rajasthan High Court - Jodhpur
Gaje Singh vs State on 12 July, 2017
Author: Manoj Kumar Garg
Bench: Gopal Krishan Vyas, Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 796 / 2012
Gaje Singh S/o Naval Singh, by caste Kumawat Rajput, age 37
years, resident of Samicha, Police Station Kelwara, District
Rajsamand
----Appellant
Versus
State of Rajasthan
----Respondent
Connected With
D.B. Criminal Appeal No. 882 / 2012
Gaje Singh S/o Naval Singh, by caste Kumawat Rajput, age 37
years, resident of Samicha, Police Station Kelwara, District
Rajsamand
----Appellant
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. SS Sisodiya
For Respondent(s) : Mr. CS Ojha, PP
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE MANOJ KUMAR GARG Judgment Per Hon'ble Mr. Justice Manoj Kumar Garg Date of judgment :: 12th July, 2017 D.B. Cr. Appeal No.796/2012 has been filed by the accused appellant through his counsel and another cr. appeal being D.B. Cr. Appeal No.882/2012 has been filed by the accused appellant (2 of 13) [CRLA-796/2012] through jail.
Both the appeals are registered against the common judgment dated 26.7.2012 passed by the learned Sessions Judge, Rajsamand in Sessions Case No.58/2011 whereby the accused appellant Gaje Singh was convicted for offence under Section 302 and 498A IPC and following sentence was passed against him, which reads as under:
Under Section 302 IPC Imprisonment for life Under Section 498A IPC Three years RI As per facts of the case on 14.10.2010, PW--1 complainant Devi Singh submitted a written report (Ex.P/1) upon that FIR no.160/2010 was registered under Section 306 and 498A IPC on 14.10.2010 at Police Station Kelwara, District Rajsamand.
In the FIR, complainant alleged that marriage of his sister late Smt. Kamla solemnized with the appellant Gaje Singh 10 years back and after two years of marriage, her in-laws and husband started quarreling with her, but his sister did not say any word to them but on 29.9.2010 her husband give beating and take her in the field at solitary place and it was suspected that accused appellant took his wife Kamla near well and pushed inside the well. It is also suspected that it is a case of murder because deceased was knowing swimming, therefore, the story of committing suicide is totally false. Therefore, it is prayed that action may be taken against her husband and in-laws for committing offence of murder. It is also stated that they were busy in cremation and final rites of the deceased, therefore, delay (3 of 13) [CRLA-796/2012] is caused. Before submitting aforesaid complaint, a written complaint was also submitted by one Surendra Singh on 2.10.2010 at Police Station Kelwara, District Rajsamand upon which Marg No.9/2010 was registered under Section 174 Cr.P.C. at 7.30 pm and investigation was commenced.
Upon complaint (Ex.P/1) formal FIR (Ex.P/16) was registered and investigation was commenced by the SHO Police Station, Kelwara. The appellant was arrested and after completing investigation, charge-sheet was filed against the accused appellant by the SHO Police Station Kelwara, District Rajsamand under Section 498A and 306 IPC in the court of Munsif and Judicial Magistrate, Kumbhalgarh from where case was committed for trial in the court of Addl. Sessions Judge (FT), Rajsamand.
In the trial, the learned trial court after considering entire evidence framed the charge against the accused appellant Gaje Singh for the offence under Section 498A and 306 IPC vide order dated 14.7.2011. After abolition of the court of Addl. District & Sessions Judge (FT), the case was again transferred to the court of Sessions Judge, Rajsamand on 1.4.2011 where trial was commenced.
As per record on 19.7.2012, at the time of final hearing of the case the learned trial court amended the charge and charge under Section 302 IPC was also added but the accused appellant denied the allegations for the charge of Section 302 IPC.
In the trial after framing charge, statements of 22 prosecution witnesses were recorded in support of prosecution (4 of 13) [CRLA-796/2012] case and 17 documents were exhibited from prosecution side, thereafter, the statements of the accused appellant under Section 313 Cr.P.C. were recorded by the learned trial court but accused appellant denied all the allegations made by the prosecution witnesses and produced two witnesses in defence namely DW-1 Naval Singh and DW-2 Sardar Singh, so also, three documents were exhibited from the defence side.
The learned trial court finally heard arguments and decided the case vide judgment dated 26.7.2012 in Sessions Case No.58/2011 whereby convicted the accused appellant for offence under Section 302 and 498A IPC and acquitted the appellant from charge under Section 306 IPC.
At the threshold learned counsel for the accused appellant submits that whole trial was conducted by the learned trial court after framing charge under Section 306 and 498A IPC but after recording evidence of both the sides at the final stage, the learned trial court amended the charge vide order dated 19.7.2012 and added the charge under Section 302 IPC against the accused appellant and, thereafter, convicted the accused appellant for offence under Section 302 IPC, but the assessment of evidence by the trial court for offence under Section 302 IPC is totally erroneous because as per entire evidence of prosecution more specifically statement of PW--17 Dr. Sudhir Sharma it is obvious that allegation of prosecution for inflicting injuries has not been corroborated because as per statement of the doctor only two injuries were found upon the body of the deceased and those (5 of 13) [CRLA-796/2012] injuries were caused due to hit of the wall of well and cause of death of was asphyxia due to drowning, therefore, the allegation of prosecution for committing offence under Section 302 IPC is not made out.
Learned counsel for the appellant submits that there is no eye witness of the case and entire case is based upon circumstantial evidence, further submits that even if the statement of all the prosecution witnesses is accepted then also offence cannot travel beyond offence under Section 498A and 306 IPC, the learned trial court conducted whole trial while framing charge under Section 306 and 498A IPC, but before hearing final arguments, amended the charge and added charge under Section 302 IPC and held accused appellant guilty for offence under Section 302 IPC. According to the learned counsel for the appellant the finding of guilt recorded by the learned trial court for offence under Section 302 IPC is based upon presumption because there is no eye witness of the case, more so, the learned trial court gave finding on the basis of his own presumption without any corroboration from the prosecution evidence. It is also argued that in-laws participated in the cremation and incident was reported by Sohan Singh S/o Bhanwar Singh (PW--7) upon that proceedings under Section 174 Cr.P.C. was initiated but later on upon complaint made by the brother of the deceased Devi Singh (PW--1) FIR was registered after delay of 14 days.
Learned counsel for the appellant submits that there is no eye witness in the case, but witness PW--1 Devi Singh brother of (6 of 13) [CRLA-796/2012] the deceased, PW--2 Arjun Singh, brother in law of the deceased, PW--8 Lal Singh, brother-in-law and husband, PW--9 Khet Singh, uncle of Kamla, PW--10 Hemant Singh, uncle of deceased Kamla, PW--11 Kalu Singh, cousin brother of the deceased and PW--13 Himmat Singh, brother-in-law of the deceased Kamla (sister's son), PW--14 Pushpa Kanwar, sister-in-law and PW--15 Heera Kanwar, sister-in-law of the deceased made allegation for demand of dowry without any medical evidence and admittedly they are not eye witness nor upon their statements, offence under Section 302 IPC is made out. It is also submitted that the post mortem report as well as the statement of doctor loudly speaks that it is not a case for commission of offence under Section 302 IPC but the learned trial court gave erroneous finding only on presumption that prosecution has proved the case beyond reasonable doubt for commission of offence under Section 302 IPC. Therefore, it is a case in which appellant has been held guilty for offence under Section 302 IPC without any trustworthy or reliable evidence. As per arguments, even if entire prosecution evidence is accepted then also offence cannot travel beyond offence under Section 498A and 306 IPC. Therefore, finding of guilt recorded by the learned trial court for offence under Section 302 IPC merely on the basis of presumption deserves to be quashed.
Per contra, learned Public Prosecutor vehemently opposed the prayer and submits that though the marriage of deceased and appellant was solemnized 10 years back from the date of incident (7 of 13) [CRLA-796/2012] and during the said period some time quarrel took place in between the appellant and his wife and as per the evidence on record the appellant gave threatening to the deceased for committing her murder, therefore, under a conspiracy he has killed the deceased by pushing her in the well situated in their agricultural field, therefore, the learned trial court gave finding that it is a case of murder punishable under Section 302 IPC because the accused appellant with planning committed murder of the deceased by pushing her in the well and before incident gave severe beating to the deceased. The circumstantial evidence loudly speaks that it is a case of murder, therefore, the learned trial court has rightly arrived at with the finding of guilt under Section 302 IPC, according to learned Public Prosecutor the delay in filing the FIR is not fatal because soon after the occurrence proceedings under Section 174 Cr.P.C. was initiated and, thereafter, the complaint was filed upon which after registration of the FIR regular investigation took place and charge sheet was filed against accused appellant for offence under Section 498A and 306 IPC, but later on, on the basis of the evidence on record, the learned trial court added the charge for offence under Section 302 IPC and finally convicted the accused appellant for offence under Section 302 IPC, for the reasons that there is ample circumstantial evidence to prove the case against the accused appellant for offence under Section 302 IPC.
According to the learned Public Prosecutor there is no error in the judgment, therefore, this appeal may kinldy be dismissed.
(8 of 13) [CRLA-796/2012] After hearing learned counsel for the parties, we have perused the entire evidence and, considered the arguments advanced by the learned counsel for the appellant. There is no dispute that FIR was registered after delay of 10 days from the date of occurrence and soon after the occurrence, no FIR was filed by the parents and brother of the deceased.
Upon assessment of the entire evidence, it is revealed that the relationship of deceased and the appellant was not cordial due to said reason on 21.6.2004 an agreement was signed by the parties that in future the appellant husband will not make any quarrel nor he will give any beating to her and under the said agreement (Ex.P/7), Deceased was allowed to go with the appellant, but upon consideration of the entire evidence and statement of prosecution witnesses that behavior of the accused appellant remained same and due to said reason deceased was not happy in her in-laws house.
Now question arose whether the deceased was murdered or it is a case of suicide due to drowning. Upon perusal of statement of PW--1 Devi Singh and all other witnesses it is obvious that there is no eye witness in this case. To ascertain the correctness of the finding, we have perused the statement of PW--17 Dr. Sudhir Sharma. The Dr. Sudhir Sharma in categorically stated that as per post mortem the cause of death was asphyxia due to drowning. The statement of Dr. Sudhir Sharma are as under:
" fnukad 02-10-2010 dks eS lkeq-Lok- dsUnz dsyokyk ewa- fpfdRlkf/kdkjh ds in ij dk;Zjr FkkA bl jkst Fkkukf/kdkjh (9 of 13) [CRLA-796/2012] dsyokMk ds fuosnu ij cksMZ ds }kjk Jhefr deyk ckbZ dk iksLVekVZe fjiksVZ rS;kj dh FkkA esjs vykok cksMZ es Mk-
ijh{k.k djus ij fuEu pksVsa ik;h x;h%&
1- lwtu 6-5X3-8 lseh- nk;sa da/ks ijA
2- lwtu 7x8x4-2 ls-eh- ihB ij cka;h rjQA
Nksuksa pksVsa e`R;q ls iwoZ Fkh rFkk lk/kkj.k izd`fr dh gksdj dqUn gfFk;kj ls dkfjr gksuk ik;h x;hA vUr; ijh{.k esa nksuksa QsQM+s Qys gq, Fks rFkk gok ,oa [kwu fefJr Nkx dkVus ij ckgj vk jgk FkkA mlds vU; vo;o tkap esa LoLFk ik;s x;sA gekjh jk; esa e`R;q dk dkj.k ,DQhfl;e Fkk tks fd e`R;q ls iwoZ Mwcus ls gqvk FkkA iksLVekVZe fjiksVZ iz ih-8 gS ftl ij , ls ch esjs gLrk- gS ,oa lh ls Mh MkW- - gS ,oa bZ ls ,Q esfMdy cksMZ dh jk; gSA iksLVekVZe fjiksVZ esjh dyeh gSA ftjg }kjk vf/koDrk vfHk;qDr Jh Mh ,l jkBSkM+ ;g lgh gS fd mDr nksuksa pkvSa tks da/ks vkSj ihB ij gS og dq, ls fxjus ls nhokj ls Vdjkus ls vk ldrh gSA"
Upon perusal of the statement of Dr. Sudhir Sharma there is no dispute that no such injury was caused by the accused appellant to the deceased to commit murder. Similarly, there is no evidence on record to prove the fact that deceased was pushed by the accused appellant in the well so as to commit her murder.
PW--18 Madan Singh who was SHO on 2.10.2010 categorically stated before the court that at the time of reporting the case proceedings under Section 174 Cr.P.C. was initiated. At (10 of 13) [CRLA-796/2012] that time, no suspicion was raised by the parties. In the cross- examination, the PW--18 Madan Lal gave following statement:
";g lgh gS fd lksgu flag dh exZ fjiksVZ izMh 3 ntZ djk;h rc ml le; mlus fdlh Hkh izdkj dk dksbZ 'kd 'kqck tkfgj ugha fd;k FkkA ftlesa e`R;q dk dkj.k vdky vpkud ekSr ekuk x;k FkkA ;g lgh gS fd bl izdj.k esa eqdnek ?kVuk ds 12 fnu ckn ntZ gqvk FkkA "
The other witness PW--21 Bhanwar Singh who was working as ASI stated before the court that Marg No.19/2010 was registered under Section 174 Cr.P.C. and investigated by him during investigation at that time, Gordhan Singh, Devi Singh, Lal Singh, Jawan Singh and Hamer Singh all were present when Panchnama of the dead body was prepared. It is also stated in the cross-examination by him that when incident was reported in the Police Station no suspicion was raised by the family members of the deceased. In the cross-examination, the PW--21 Bhanwar Singh gave following statement, which reads as under:
";g lgh gS fd ftl le; exZ ds fy, fjiksVZ Fkkus esa is'k gqbZ Fkh ml le; deyk ds ekSj ds lac/a k esa mlds ifjokj okyksa us dksbZ 'kd 'kqck tkfgj ugha fd;kA ;g lgh gS fd exZ fjiksVZ rS;kj djh Fkh rc mldk nksuksa HkkbZ ekStwn FkkA ;g lgh gS fd mUgksusa e`rdk ds ifr ds }kjk ngst dh vuqfpr ekax ds fy,s mls izrkfMr djus dh ckr ugha crk;hA"
It is also admitted fact of the case that police filed charge-sheet under Section 306 and 498A IPC and whole trial was conducted after framing charge under Section 306 and 498A IPC, but after recording evidence at final stage, on the date of final (11 of 13) [CRLA-796/2012] hearing on 19.7.2012 the learned trial court amended the charge and added offence under Section 302 IPC and reserved the judgment for pronouncement and finally pronounced the judgment on 26.7.2012.
Upon perusal of entire evidence it is revealed that after investigation, charge-sheet was filed under Section 306 and 498A because no evidence came on record to prove the allegation of murder or pushing the deceased in the well by the accused appellant. None of the family members raised any suspicion when matter was investigated by the police under Section 174 Cr.P.C. but later on complaint was filed by the brother of the deceased PW--1 Devi Singh, upon which investigation was conducted and finally the charge-sheet was filed under Section 306 and 498A IPC.
After considering finding and evidence on record, we are of the opinion that conviction under Section 302 IPC is based upon presumption of the trial court because there is no direct evidence on record to prove the fact that accused appellant pushed the deceased in the well and committed murder. More so, as per the statement of the doctor there was no apparent injury which is said to be inflicted by any weapon. All the symptoms recorded in the post mortem by the doctor proved that it is a case of drowning.
We have perused the documentary evidence, so also, considered the fact of quarrel took place in between the accused appellant and deceased after marriage in the year 2004 and considering the fact that agreement was executed on 21.7.2004 in (12 of 13) [CRLA-796/2012] the presence of number of persons at that time the accused appellant gave assurance to the in-laws that he will not make any quarrel with the deceased after consuming liquor. Therefore, it is clear from the evidence that the attitude of the accused appellant with the deceased was not good and he was quarreling with the deceased, therefore, deceased committed suicide which resulted into death.
In view of the above discussion, we are of the opinion that the finding of the learned trial court to convict the accused appellant for offence under Section 302 IPC instead of Section 306 IPC is not sustainable in law because entire evidence loudly speaks that it is a case in which prosecution has proved the allegation of cruelty by the accused appellant with the deceased and as per opinion of the doctor she died due to drowning and there is no evidence on record for pushing the deceased in the well by the accused appellant, therefore, we have no hesitation to quash the finding of the learned trial court for offence under Section 302 IPC, but we are of the opinion that prosecution has proved its case for offence under Section 306 IPC.
In view of the above, cr. appeal No.796/2012 is partly allowed. The conviction and sentence of the accused appellant for offence under Section 302 IPC passed by the learned Sessions Judge, Rajsamand vide judgment dated 26.7.2012 in Sessions Case No.58/2011 is hereby quashed and set aside and is hereby altered to offence under Section 306 IPC and the appellant is hereby punished for sentence of ten years imprisonment with fine (13 of 13) [CRLA-796/2012] of Rs.5,000/- and in default of payment of fine to further undergo three months RI. The finding for conviction and sentence for the offence under Section 498A IPC as passed by the learned trial court is hereby maintained.
Consequently, the D.B. Cr. Appeal No.882/2012 filed by the appellant through jail is also disposed of in terms of the judgment passed in D.B. Cr. Appeal No.796/2012 filed against same judgment passed by the learned Sessions Judge, Rajsamand in Sessions Case No.58/2011.
(MANOJ KUMAR GARG)J. (GOPAL KRISHAN VYAS)J. cpgoyal/ps