Rajasthan High Court - Jodhpur
Kala Singh @ Naresh And Anr vs State on 23 November, 2022
Bench: Sandeep Mehta, Kuldeep Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 327/2014
1. Kala Singh @ Naresh S/o Kailash Singh, by caste Ramdasia,
Age 23 years, R/o Chunawad (Sri Ganganagar).
2. Meena Devi W/o Tarsem Singh, by caste Ramdasiya, aged 31
years, R/o Ward No.3, Chunawad (Sri Ganganagar).
----Appellants
Versus
The State of Rajasthan.
----Respondent
Connected With
D.B. Criminal Appeal No. 28/2014
1. Ramesh Kukar @ Mahesh S/o Surja Ram, by caste Nayak,
aged 22 years, R/o Chunawad (Sri Ganganagar).
2. Vikas Kumar @ Om Prakash S/o Kishan Lal, by caste Nayak,
Age 20 years, R/o Chunawad (Sri Ganganagar).
----Appellants
Versus
The State of Rajasthan.
----Respondent
For Appellant(s) : Mr. Navneet Poonia.
For Respondent(s) : Mr. B.R. Bishnoi, AGC.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE KULDEEP MATHUR
JUDGMENT
DATE OF JUDGMENT: 23/11/2022
Reportable
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BY THE COURT (PER HON'BLE MEHTA, J.)
1. These two appeals have been filed for assailing the Judgment dated 13.12.2013 passed by the learned Additional Sessions Judge (Special Court of Women Atrocities and Dowry Cases), Sri Ganganagar in Sessions Case No.36/2013 whereby, the appellants herein were convicted and sentenced as below:
Kala Singh @ Naresh Offences Sentences Fine Fine Default sentences Section 458 IPC 10 Years' R.I. Rs.5,000/- 6 Months' further imprisonment Section 459 IPC Life Imprisonment Rs.5,000/- 6 Months' further imprisonment Section 394 IPC Life Imprisonment Rs.10,000/- 6 Months' further imprisonment Section 397 IPC 10 Years' R.I. Rs.10,000/- 6 Months' further imprisonment Section 323 IPC 1 Year's Rs.2,000/- 3 months' Imprisonment further imprisonment Section 325/34 3 Years' Rs.2,000/- 6 Months' IPC Imprisonment imprisonment All the substantive sentences were ordered to run concurrently.
Ramesh Kumar @ Mahesh
Offences Sentences Fine Fine Default
sentences
Section 458 IPC 10 Years' R.I. Rs.5,000/- 6 Months'
further
imprisonment
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Section 459 IPC Life Imprisonment Rs.5,000/- 6 Months'
further
imprisonment
Section 394 IPC Life Imprisonment Rs.10,000/- 6 Months'
further
imprisonment
Section 397 IPC 10 Years' R.I. Rs.10,000/- 6 Months'
further
imprisonment
Section 323/34 1 Year's Rs.2,000/- 3 months'
IPC Imprisonment further
imprisonment
Section 325/34 3 Years' Rs.2,000/- 6 Months'
IPC Imprisonment imprisonment
All the substantive sentences were ordered to run concurrently.
Vikas Kumar @ Om Prakash
Offences Sentences Fine Fine Default
sentences
Section 458 IPC 10 Years' R.I. Rs.5,000/- 6 Months'
further
imprisonment
Section 459 IPC Life Imprisonment Rs.5,000/- 6 Months'
further
imprisonment
Section 394 IPC Life Imprisonment Rs.10,000/- 6 Months'
further
imprisonment
Section 397 IPC 10 Years' R.I. Rs.10,000/- 6 Months'
further
imprisonment
Section 323 IPC 1 Year's Rs.2,000/- 3 months'
Imprisonment further
imprisonment
Section 325 IPC 3 Years' Rs.2,000/- 6 Months'
Imprisonment imprisonment
All the substantive sentences were ordered to run concurrently. (Downloaded on 30/11/2022 at 08:55:30 PM)
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Meena Devi
Offences Sentences Fine Fine Default
sentences
Section 458 IPC 10 Years' R.I. Rs.5,000/- 6 Months'
further
imprisonment
Section 459 IPC Life Imprisonment Rs.5,000/- 6 Months'
further
imprisonment
Section 394/34 Life Imprisonment Rs.10,000/- 6 Months'
IPC further
imprisonment
Section 397/34 10 Years' R.I. Rs.10,000/- 6 Months'
IPC further
imprisonment
Section 323/34 1 Year's Rs.2,000/- 3 months'
IPC Imprisonment further
imprisonment
Section 325/34 3 Years' Rs.2,000/- 6 Months'
Imprisonment imprisonment
All the substantive sentences were ordered to run concurrently.
2. Being aggrieved of their conviction and sentences, the appellants have preferred these appeals under Section 374(2) Cr.P.C.
3. Since both these appeals arise out of a common Judgment, they have been heard and are being decided together.
4. Briefly stated, facts relevant and essential for disposal of the appeals are noted hereinbelow.
Parcha Bayan of Smt. Laxmi Devi (hereinafter referred to as 'the victim') (Ex.P./1) was recorded by the SHO, Police Station Chunawad, District Sri Ganganagar at Bed No.18 of Female (Downloaded on 30/11/2022 at 08:55:30 PM) (5 of 15) [CRLA-327/2014] Orthopedic Ward, Government Hospital, Sri Ganganagar on 05.03.2013 at 10.30 AM wherein, she alleged that her husband and her son had expired. She was living all alone in her Kachcha house constructed on her plot. She would be provided food by her neighbours. On the previous evening, she had dinner and then bolted the door of the room and went to sleep. At about 11-12 O' Clock in the night, three boys of village Chunawad namely Ramesh, Kala Singh and Vikas broke into her room. She woke up on hearing the noise on which, Ramesh gagged her mouth, Vikas sat on her feet and Kala Singh gave her fist and kick blows. Kala Singh snatched her golden earrings weighing about 1 Tola due to which, her earlobes got torn and started bleeding profusely. She raised a hue and cry on which, Ramesh tried to throttle her. Vikas stood up and broke her left leg by giving a stick blow. All three ran away with her earrings. She raised a hue and cry on which, some villagers came there and got her admitted to Chunawad Hospital from where, she was referred to Ganganagar Government Hospital.
5. On the basis of this Parcha Bayan (Ex.P/1), an FIR No.29/2013 (Ex.P/16) came to be registered at the Police Station Chunawad for the offences punishable under Sections 458, 394, 323 read with Section 34 IPC and investigation was commenced. During the course of investigation, statements of some witnesses were recorded who alleged that they had seen the appellant Meena proceeding from the direction of the informant's house with the accused Ramesh, Vikas and Kala Singh. All the four accused were arrested. The accused Kala Singh @ Naresh allegedly gave a disclosure statement (Ex.P/40) to the I.O. Shri Phoolchand (Downloaded on 30/11/2022 at 08:55:30 PM) (6 of 15) [CRLA-327/2014] Sharma (PW-15) under Section 27 of the Indian Evidence Act. Acting in furtherance thereof, the I.O. proceeded to the house of the accused Meena and got recovered a golden earring. The second earring was got recovered in furtherance of the disclosure statement made by the accused Ramesh Kumar (Ex.P/41). Smt. Laxmi Devi was got medically examined for her injuries and the Medico-Legal Report (Ex.P/21) was prepared. Upon conclusion of investigation, charge-sheet came to be filed against the accused appellants for the offences under Sections 458, 459, 394 in the alternative 394/34, 397 in the alternative 397/34, 323 in the alternative 323/34 and 325 in the alternative 325/34 of the IPC.
As the offences under Sections 397 and 459 IPC were Sessions triable, the case was committed and then transferred to the court of Additional Sessions Judge (Special Judge of Women Atrocities & Dowry Cases), Sri Ganganagar for trial where charges were framed against the accused appellants Ramesh, Vikas and Kala Singh @ Naresh for the offences under Sections 458, 459, 394, 397, 323/34 and 325/34 IPC and against the accused appellant Meena for the offences under Sections 458, 459, 394/34, 397/34, 323/34 and 325/34 IPC. They pleaded not guilty and claimed trial. The prosecution examined as many as 15 witnesses and exhibited 52 documents to prove its case. The accused were questioned under Section 313 Cr.P.C. and upon being confronted with the prosecution allegations, they denied the same, claimed to be innocent but did not lead any evidence in defence.
After hearing the arguments advanced by the Public Prosecutor and the defence counsel and, appreciating the evidence available on record, the learned trial court proceeded to (Downloaded on 30/11/2022 at 08:55:30 PM) (7 of 15) [CRLA-327/2014] convict and sentence the appellants as above by the Judgment dated 13.12.2013 which is impugned in these two appeals.
6. Learned counsel Shri Navneet Poonia representing the appellants Ramesh, Vikas and Kala Singh @ Naresh, vehemently and fervently contended that the prosecution has failed to prove its case as against the appellants by reliable evidence. The star prosecution witness, the victim Laxmi Devi was an old lady aged about more than 85 years. She stated in her examination-in-chief that she was unable to see in darkness. In cross-examination, she admitted that she went to sleep after switching off the lights, etc. Thus, as per Shri Poonia, there was no source of light at the crime scene and hence, it would have been impossible for the victim to have successfully identified the accused in the condition of pitch darkness. His alternative submission was that the term of imprisonment which is provided under Sections 394 and 459 IPC is "imprisonment for life" or with "rigorous imprisonment for a term which may extend to 10 years". As per Shri Poonia, the bare language of these Sections would indicate that "imprisonment for life" should be awarded by way of exception and not as a matter of course. He submitted that the accused appellants Ramesh, Vikas and Kala Singh @ Naresh have already undergone sentence of more than 10 years with remission and thus, the sentence of Life Imprisonment awarded to the accused appellants for the offences punishable under Sections 394 and 459 IPC should be reduced to the period already undergone by them.
Since, no one has appeared to argue the matter on behalf of the accused Meena Devi, Shri Poonia assisted the Court qua the said accused also. He submitted that there is no reference to the (Downloaded on 30/11/2022 at 08:55:30 PM) (8 of 15) [CRLA-327/2014] presence of any woman accused in the Parcha Bayan (Ex.P/1) given by Smt. Laxmi. The witness Smt. Sunita (PW-3) alleged that she and her husband were taking care of their cow when they saw a woman and some men standing near the house of the victim. The lady identified the accused appellant Meena as being the said woman. Shri Poonia pointed out that the witness admitted in her cross-examination that Laxmi Devi told her the name of the assailants. She also admitted that in the police statement (Ex.D/1), she did not disclose the name of Meena as being the woman who was accompanying the male accused persons. Shri Poonia also submitted that the witness Brijlal (PW-4) stated that Laxmi Devi took the name of the four assailants including the appellant Meena. However, this allegation of Brijlal is contradicted by the statement of the victim Laxmi Devi (PW-1). The witness Brijlal also admitted that he did not know Meena from before the incident. Thus, naming of the accused Meena by this witness is of no consequence whatsoever because he could not have identified the woman whom he did not know from before. He also pointed out that the witness Daulat Ram (W-5) did not name the appellant Meena in his evidence. Shri Poonia thus urged that as against the accused Meena, there is no evidence whatsoever to connect her with the alleged crime. He further submitted that though the I.O. alleged that the one piece from the pair of earrings of the victim was recovered from the house of the accused Meena in furtherance of the disclosure statement of the accused Kala Singh @ Naresh (Ex.P/40) but, no document of recovery proceedings bears the signature of Meena and thus, no inference can be drawn against her in relation to this recovery. He thus submitted that finding recorded in the impugned Judgment whereby, the accused (Downloaded on 30/11/2022 at 08:55:30 PM) (9 of 15) [CRLA-327/2014] Meena was convicted for the above offences does not stand to scrutiny and thus, the accused appellant Meena is entitled to be acquitted.
7. Learned Public Prosecutor, on the other hand, vehemently and fervently opposed the submissions advanced by the appellants' counsel. He contended that the male accused appellants, committed the heinous offence of house breaking by night and brutally assaulted the old lady aged 85 years and robbed her gold earrings by breaking her earlobes and thus, the trial court was perfectly justified in awarding the sentence of Life Imprisonment to these accused for the offences punishable under Sections 394 and 459 IPC. However, qua the accused Meena, learned Public Prosecutor candidly conceded that the evidence as against this accused is not clinching and the findings of guilt recorded against her by the trial court are more or less conjectural.
8. We have given our thoughtful consideration to the submissions advanced at bar and, have gone through the impugned Judgment and the record.
9. The case of prosecution as against the male accused assailants namely Ramesh, Vikas and Kala Singh @ Naresh is based on the direct evidence of the victim Smt. Laxmi Devi (PW-
1). We have carefully perused the Parcha Bayan (Ex.P/1) and the sworn statement of Laxmi Devi (PW-1) and find that the lady gave clinching evidence on the aspect that the three accused appellants, broke into her house in the dead of the night, indulged (Downloaded on 30/11/2022 at 08:55:30 PM) (10 of 15) [CRLA-327/2014] in violence with her and snatched away her gold earrings. In the process, the earlobes of the lady were torn and her left leg was fractured. Nothing significant is revealed from the cross-
examination conducted from the lady which could create a doubt on the aspect of identification of the accused by the witness at the time of the incident and during her sworn testimony. Thus, the evidence of Smt. Laxmi Devi (PW-1) is convincing to the extent, she levelled allegations of house breaking by night and robbery associated with violence against the accused appellants Ramesh, Vikas and Kala Singh @ Naresh. However, evidence of the witnesses Sunita (PW-3), Brijlal (PW-4) and Daulat Ram (PW-5), who alleged that they saw these male assailants standing besides the house of Laxmi Devi and thereafter going away alongwith the accused Meena Devi, is not convincing. There was no rhyme or reason as to why, these witnesses would be loitering around in the odd hours of the night. Hence, they clearly appear to be made-up chance witnesses.
We are of the view that the I.O. seems to have involved/created these witnesses to somehow or the other implicate the accused Meena because, the victim herself did not take the name of any female as having participated in the incident. That is why, Sunita (PW-3), Brijlal (PW-4) and Daulat Ram (PW-5) were created as chance witness and in their evidence, the theory of a woman having participated in the incident was added. Hence, the evidence of these witnesses is not convincing.
The earrings looted from the person of the victim were recovered by the I.O. in furtherance of the disclosure statement made by the accused Kala Singh @ Naresh (Ex.P/40) and Ramesh (Ex.P/41). Though the I.O. alleged that one of the earrings was (Downloaded on 30/11/2022 at 08:55:30 PM) (11 of 15) [CRLA-327/2014] recovered from the house of the accused Meena but, from the entire set of evidence available on record, it becomes clear that the I.O. made no effort whatsoever to collect satisfactory evidence to show that the house in question was of Meena. It may be emphasized that the recovery memo (Ex.P/6), the site inspection plan (Ex.P/7) and site inspection memo (Ex.P/7A) pertaining to recovery of this earring does not bear the signature of the accused Meena. Hence, this recovery cannot be considered as an incriminating material against this accused. No other evidence was brought on record to connect the accused appellant Smt. Meena with the incident.
10. Consequently, we are of the firm view that the conviction of the accused appellant Meena as recorded by the trial court is not based on sound appreciation of evidence and hence, the same is liable to be quashed and set aside.
11. However, the findings of guilt as recorded by the trial court against the accused appellants Ramesh, Kala Singh and Vikas are based on thorough and appropriate appreciation of evidence available on record. Thus, their conviction for the offences under Sections 458, 459, 394, 397, 323 and 325/34 IPC is upheld.
12. Now coming to the aspect of sentence. The accused have been awarded Life Imprisonment for the offences punishable under Sections 394 and 459 IPC. Both offences stipulate the terms of sentences in the words "shall be punished with "Imprisonment for Life" or with 'rigorous imprisonment for a term which may extend to ten years". The sentence of "Imprisonment for Life" was (Downloaded on 30/11/2022 at 08:55:30 PM) (12 of 15) [CRLA-327/2014] substituted/introduced in these Sections in place of the words "transportation for life' w.e.f. 01.01.1956 by amending Section 53A IPC.
The sentence of "transportation for life", which was incorporated in Sections 394 and 459 and many other similar provisions, is a grim reminder of the dark colonial history of our country. This punishment seems to have incorporated in various sections of Penal Code by the British Rulers who found the presence of the freedom fighters in the country to be undesirable. Thus, sentence of "transportation for life" was awarded and the freedom fighters were sent to suffer inhuman punishments and incarceration in far away places like Port Blair, Burma, etc. After gaining independence, the legislature felt the imminent need to do away with this inhuman form of punishment whereupon, Section 53A was incorporated in the Indian Penal Code by way of an amendment in the year 1956 whereby, it was provided that reference to "transportation for life" in the Penal Code and any other law or in any instrument or order was required to be construed as a reference to "imprisonment for life".
With this exclusion of the sentence of "transportation for life", an anomaly has been created in the corresponding penal provisions inasmuch as, now, the sentences, which can be imposed by the court for such offences where transportation for life was earlier provided, would either be "imprisonment for life" or "imprisonment for a term upto 10 years", as the case may be. Meaning thereby, the court can either award sentence 'upto 10 years' but if it is desirable to award a graver sentence, there would be no option but to award sentence of "imprisonment for life" to the accused.
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(13 of 15) [CRLA-327/2014] We are thus of the view that the sentence of "imprisonment for life" substituted for the sentence of "transportation for life" in various sections of the Indian Penal Code or for that matter, other penal provisions, is an agonizing reminder of the dark colonial history. Hence, before taking recourse of awarding this extreme sentence, the courts should be circumspect and the sentence of life imprisonment should be awarded under these penal provisions only if there are strong and compelling circumstances.
For imposing the sentence of life imprisonment in preference to the imprisonment of a term upto 10 years, the court would be required to record special reasons. Otherwise also, the reformative theory of punishment demands that wherever, there are options of awarding two sets of imprisonment, one harsher than the other, in such a circumstance, if the court decides to impose the graver sentence, it must record plausible reasons for doing so.
When we go through the impugned Judgment, we find that before awarding sentence of life imprisonment to the accused, the trial court did not advert to the mitigating and aggravating circumstances and the age of the accused who were young boys at the time of the incident and straight away, considering the gravity and the nature of the crime, awarded the maximum sentence of life imprisonment to the accused appellants.
13. In this background and, having regard to the discussion made herein above, we find that it is not a fit case warranting award of harsh penalty of life imprisonment to the accused in this case. The accused Ramesh, Vikas and Kala Singh were young men aged 20-22 years at the time of the incident and thus, we are of (Downloaded on 30/11/2022 at 08:55:30 PM) (14 of 15) [CRLA-327/2014] the opinion that the sentence awarded to the accused appellants for the offences under Sections 394 and 459 IPC deserve to be reduced to the period of 10 years rigorous imprisonment.
As a consequence, we set aside the sentence of life imprisonment awarded to the accused (1) Ramesh, (2) Vikas and (3) Kala Singh for the offences punishable under Sections 394 and 459 IPC and instead sentence them to 10 years R.I. and fine of Rs.10,000/- each. In default of payment of fine, each accused will serve additional imprisonment of 6 months. However, their conviction and the sentences awarded for the remaining offences are maintained. All the sentences shall run concurrently.
The appeals preferred by the accused Ramesh, Vikas and Kala Singh are partly allowed in the above terms. The appeal filed by the appellant Meena is allowed and her conviction as recorded by the trial court for the offences punishable under Sections 458, 459, 394/34, 397/34, 323/34 and 325/34 IPC and the sentences awarded to her by the impugned Judgment dated 13.12.2013 are hereby quashed and set aside. She is on bail. Her bail bonds are discharged.
14. However, keeping in view the provisions of Section 437-A Cr.P.C., the appellant Meena is directed to furnish a personal bond in the sum of Rs.40,000/- and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the appellant shall appear before the Supreme Court. (Downloaded on 30/11/2022 at 08:55:30 PM)
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15. Record be returned to the trial court forthwith.
16. A copy of this order be placed in each file.
(KULDEEP MATHUR),J (SANDEEP MEHTA),J
33-Tikam Daiya/-
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