State Of Rajasthan vs Gulab Singh & Ors

State of Rajasthan ...Appellant

Versus

Gulab Singh and Ors. ...Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the order passed by a

Division Bench of the Rajasthan High Court, Jodhpur, altering

the conviction of the respondent for offence punishable under Section 302 read with Section 34 of the Indian Penal Code,

1860 (in short the `IPC') to Section 307 IPC. However, the

conviction under Sections 458 and 460 IPC were maintained.

The substantive sentences in respect of the offences were

reduced to the period already undergone.

3. The trial Court i.e. learned Sessions Judge (Fast Track),

Rajsamand had convicted respondents 1 to 4 for offences

punishable under Section 302 read with Section 34 and

Sections 460, 458 and 397 of IPC and various other sentences

in respect of the other offences.

4. Prosecution version in a nutshell is as follows:

Sessions case in question arose from the first

information report (exhibit P-5) which was presented by the

complainant Shri Prakash Chand (PW-4) before the police

incharge of Arakshi Kendra, Rajsamand on 11.7.1999. It was

stated therein that on 11.7.1999 in the morning at around

6.30 a commotion was taking place outside the house of Dali

2 Chand father of Naval Ram. The complainant went to the

house of Dali Chand and saw that Smt. Jyoti wife of Dali

Chand was lying dead there, whereas her hands and

mouth/face were tied with cloth. Inside the room the hands

and legs of Dali Chand were also found tied. Thereafter, Roop

Singh untied his hands and legs. Goods were lying scattered

inside the room. The children of Dali Chand live in Bombay

and Dali Chand was having a shop of controlled commodities.

This incident was stated to have been committed by some

unknown persons.

After the presentation of the aforesaid complaint, case

No.479/99 for offences punishable under Sections 460/458

IPC was registered and investigation commenced.

In the course of the investigation the investigating officer

recorded the statement of the complainant Prakash Chand.

The injured Dali Chand was admitted in the hospital at

Rajsamand and Udaipur for treatment. His injury report

exh.P-4 was received. His x-ray was also conducted. After

3 inspection of the place of the incident, spot memo exh.P-14

was prepared. The panchayatnama memo of the dead body of

the deceased Jyotibai Exh.P-1 was prepared. The clothes

which had been used to tie the hands and the mouth of the

deceased were having blood on them and, therefore, they were

seized as evidence vide exh. P-7. After conducting the post

mortem of the dead body of the deceased the report Exh.P-3

was taken on record. Her dead body was handed over to her

heirs for cremation vide Exh.P-2. From the place of the

incident bloodstained stones and control sample stones were

seized in respect whereof exh.P-8 was prepared. Statements of

the witnesses were recorded. A list of stolen articles was

prepared. Chance prints were taken from the place of the

incident. Accused Gulab Singh, Uday Singh, Nathu Singh and

Laxman Singh were arrested. Gold and silver articles along

with cash of Rs.24,400/- were recovered at their instance.

Thereafter, jewellery was recovered at the instance of accused

Dhool Singh and Shambu Singh. In this regard exhs. P-10 to

Exh.P-13 were prepared. The place of the incident was pointed

out by the accused in respect whereof exhs. P-49 to 52 was

4 prepared. The accused were identified by the witness-Dali

Chand and thereafter the seized case property in the case

were also identified in respect whereof exh. P-67 to 72 were

prepared. Bloodstained clothes and stones were sent for FSL

examination to Forensic Sciences Laboratory Udaipur. The

place of the incident was photographed. After necessary

investigation sufficient evidence was found against accused

Gulab Singh, Uday Singh, Nathu Singh for offences

punishable under Sections 460, 458, 302 IPC and against

accused Dhool Singh, Moti Singh, Shambu Singh for offences

under Sections 414, 411, 120B IPC. The station in charge, Raj

Nagar filed a charge sheet against the above named accused

persons before the Court of learned Chief Judicial Magistrate,

Rajsamand. Case was committed to the Court of Sessions.

In order to substantiate the accusations the prosecution

examined 16 witnesses. The doctor who examined the

deceased found 12 injuries on the body of the deceased.

Placing reliance on the prosecution version in the light of the

5 evidence led the learned trial Judge recorded the conviction

and imposed sentence as afore-stated.

It is to be noted that one Shambhu Singh was sentenced

to one year's rigorous imprisonment and fine of Rs.1,000/- for

the offence punishable under Section 411 IPC was imposed.

In the appeal before the High Court he was not a party. The

High Court altered the conviction primarily on the ground that

there was no injury on the person of the deceased, as allegedly

accepted by learned Public Prosecutor.

5. Learned counsel for the appellant-State submitted that

the reasoning of the High Court is utterly fallacious as there

was no question of the learned Prosecutor feebly agreeing that

there was no injury on the person of the deceased. In fact, the

evidence of doctor to which reference has been made by the

trial Court is clear to the extent that there were 12 injuries on

the body of the deceased. In the post-mortem report also 12

injuries were indicated. It is, therefore, submitted that the

6 High Court was clearly in error in altering the conviction from

Section 302 read with Section 34 IPC to Section 307 IPC.

6. There is no appearance on behalf of the respondents in

spite of service of notice.

7. On a bare reading of the High Court's order it is clear

that it is a classic case of non-application of mind. The only

conclusion indicated by the High Court to alter the conviction

reads as follows:

"Learned PP feebly agrees that there was no injury on the person of the deceased.

Mechanical injury being absent it would be unjust if the arguments of the learned counsel for the appellants is not given some weightage. In this background offence under Section 307 IPC would be clearly made out because in that process there was an attempt by virtue of which one of the victims have died."

8. As rightly submitted by learned counsel for the State that

from the evidence of the doctor to which reference has been

made by the trial Court and the post-mortem report, it is clear

that there were 12 injuries noticed on the body of the

7 deceased and each one of them was described to be ante-

mortem. It is not clear as to how the High Court observed that

there was no injury on the body of the deceased. Still more

surprising is the observation that "mechanical" injury being

absent it would be unjust, if the argument of the learned

counsel for the accused is not given some weightage. It is not

understood as to what the High Court meant by the

expression `mechanical injury'. It is unfortunate that a

Division Bench of the High Court has come to such atrocious

and fallacious conclusions. The appeal deserves to be allowed

which we direct. The judgment of the trial Court is restored

and, therefore, the High Court's order so far it relates to

alteration of conviction from Section 302 read with Section 34

to Section 307 IPC stands set aside. The respondent shall

surrender to custody forthwith to serve the remainder of

sentence.

9. The appeal is allowed.

...............................J.

8 (Dr. ARIJIT PASAYAT)

...............................J. (P. SATHASIVAM) New Delhi, July 10, 2008

9