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2010 DIGILAW 662 (JK)

State Of J&K v. Raj Singh

2010-12-31

J.P.Singh, Sunil Hali

body2010
1. Raj Singh, respondent-accused, was sentenced to, Imprisonment for life and fine of Rs.20,000/- with default sentence of one year under Section 302 RPC, Rigorous imprisonment for five years and fine of Rs.5000/- with default sentence of one year under Section 325 RPC, and Rigorous imprisonment of one year with fine of Rs.1000/- with default sentence of two months under Section 323 RPC, pursuant to his conviction for the above offences vide Judgment dated 05.11.2008 of the learned Sessions Judge, Udhampur, vide Order of November 07, 2008, referring the case to this Court for confirmation of the Life Imprisonment. 2. The facts leading to the Confirmation Reference are these:- FIR No. 23 of 2004 registered at Police Station Panchari under Sections 302/307 RPC, on the report of Bansi Lal, the brother of the accused, culminated into lodging of a Charge-Sheet under Sections 302, 307, 376/511 RPC against the accused in the Court of Chief Judicial Magistrate, Udhampur, who committed it to the learned Sessions Judge, Udhampur, where the accused was tried for charges under Sections 302, 307 and 376/511 RPC. 3. Finding that the prosecution had not produced any evidence to support the Charge that the accused had attempted to commit rape on PW-2 Pushpa Devi, his sister-in-law, the trial Court found him guilty only of committing the Murder of Rano Devi, his aunt, besides causing voluntary grievous hurt to Pushpa Devi, his sister-in-law, relying on the statements of PW-2 Pushpa Devi, PW-3 Shankar Singh, PW-5 Surjit Singh & PW-8 Dr. Suram Chand Chanotra. 4. We have considered the submissions made by the learned Additional Advocate General in support of the Reference and Mr. Anil Khajuria, the Amicus Curiae for the accused opposing the confirmation of Life Imprisonment on the respondent, in the light of the evidence and material placed on records by the prosecution and the defence during the trial. 5. Learned Amicus Curiae's first submission that the trial of the accused was vitiated for failure of the trial Court to hold enquiry into the plea of the accused that he was not mentally fit to take the trial, is found without merit, in view of the medical opinion in respect of the accused, right from his arrest until his examination by the Board of Doctors constituted to ascertain his medical condition, pursuant to the directions of the trial Court. In view of the categoric opinion of the Medical Officers, who examined the accused during the investigation of the case and that of the Board of Doctors, that the accused was mentally and physically fit to stand the trial, we reject the learned Amicus Curiae's submission. 6. To deal with the next submission of the learned Amicus Curiae that the prosecution having suppressed the genesis of the occurrence, the respondent-accused's conviction and sentence was unwarranted, reference needs to be made to the prosecution case as it stood reflected in the Final Police Report and the evidence, which the prosecution had produced during the trial. 7. The Final Police Report, laid against the accused revealed that the accused wanted to commit rape on his real sister-in-law and on her resistance, had attacked her and his aunt, who tried to intervene, with a club (Danda) causing them severe injuries. The aunt of the accused succumbed to the injuries received in the attack whereas his sister-in-law, besides receiving simple injuries, had suffered fracture of arm. 8. To support the Charge of attempt to rape, the prosecution had relied on PW-1 Bansi Lal, the brother of the accused and PW-2 Pushpa Devi, his wife. Both these witnesses have specifically denied any attempt by the accused to commit rape on Pushpa Devi on the day of occurrence. They have denied having made any such statement to the police in this respect. 9. Failure of the prosecution to support a fact, which had appeared during investigation of the case, cannot be construed as suppression of the genesis of the crime, as projected by the learned Amicus Curiae, for the two eye witnesses to the occurrence i.e. Pushpa Devi and Surjit Singh, minor, whose presence on spot was not disputed during their cross-examination, fully supports that part of the prosecution story, where it is indicated that the accused had attacked Pushpa Devi and Rano Devi, his aunt, who tried to intervene when the accused was assaulting Pushpa Devi with the club. Not only that, PW-3 Shanker Singh, who though had not himself witnessed the occurrence but was informed about it immediately after the occurrence by the mother of the accused, had found Rano Devi dead, when he reached on spot. On his raising hue and cry, the Village Defence Committee members apprehended the accused and brought him back home. 10. Not only that, PW-3 Shanker Singh, who though had not himself witnessed the occurrence but was informed about it immediately after the occurrence by the mother of the accused, had found Rano Devi dead, when he reached on spot. On his raising hue and cry, the Village Defence Committee members apprehended the accused and brought him back home. 10. In view of the facts emerging from the statements of the eye witnesses, the corroborative statements of Shanker Singh and the husband of Pushpa Devi indicating that it was the accused, who had attacked Rano Devi and Pushpa Devi with a club, we find no merit in the learned Amicus Curiae's submission that the prosecution had suppressed the genesis of occurrence. 11. Learned Amicus Curiae next contended that in view of the statement of PW-2 Pushpa Devi, that the accused had the history of insanity and in the past too, he had been suffering from such convulsions, the accused cannot be held guilty of the offences attributed to him, in view of the provisions of Section 84 of the Ranbir Penal Code. 12. We have examined the statements of Pushpa Devi and other prosecution witnesses to appreciate the learned counsel's contention. Pushpa Devi has stated that the accused had suffered fits about 5 to7 years ago and had such convulsions again about 4 to 5 months before the occurrence. Her statement is, however, not corroborated by her husband and the other prosecution evidence, which reveals that the accused was working as labourer and was not suffering from any convulsion of insanity. 13. The plea of insanity projected by the accused is to be considered taking overall view of the prosecution evidence and the conduct of the accused during investigation and trial. 14. No evidence has been led by the accused in proof of his plea of insanity in the trial Court barring the statement of his sister in defence, which too, is not sufficient to hold that the accused was suffering from insanity at the time of the occurrence as all that she says in this respect is that the accused had been sick for the last five years. 15. There is, thus, nothing on records, on the basis whereof, it may be inferred that the accused was of unsound mind at the time of commission of the offence. 15. There is, thus, nothing on records, on the basis whereof, it may be inferred that the accused was of unsound mind at the time of commission of the offence. The way the accused had acted in causing injuries to Rano Devi and Pushpa Devi, which had resulted in Rano Devi's death revealed that he was capable of knowing the nature of the act done by him. Plea of insanity projected in this behalf, therefore, appears to be an afterthought. We, therefore, reject the submission as without merit. 16. To appreciate the last contention of the learned Amicus Curiae, that even if the evidence of the prosecution witnesses were to be believed, the act committed by the accused would not make him liable for committing the Murder of Rano Devi, regard needs to be had to the following facts. 17. The prosecution had projected in its Final Police Report that the accused had started beating his sister-in-law when the later had resisted his attempt to commit rape and when his aunt intervened to save Pushpa Devi, the accused started beating her with danda with which he had been beating his sister-in-law. That part of the prosecution story attributing attempt to rape on his sister-in-law, having failed, we do not find any evidence by the prosecution as to how the occurrence had originated. The statement of Surjit Singh, minor, too does not reveal as to what had preceded the actual occurrence. He is a witness, who had seen the accused beating Pushpa Devi and Rano Devi and is not aware as to how had the occurrence started. 18. Looking to the nature of the injuries received by Rano Devi i.e. lacerated wound 2" x1" at left frontal region of scalp, bruise 2" x 2" at left region of scalp at temporal part with fracture of bones, fracture of shaft of radius of ulna bone of left arm, besides multiple bruises in frontal neck region and at back region of 6" x 2" and the evidence of the eye witnesses, it comes out that the accused had gone for a hitting spree with the club in his hand and does not appear to have intended causing injuries on any particular part of the body with intention to cause death or having knowledge that his act would cause the death of Rano Devi. 19. 19. The manner in which the occurrence is proved to have taken place by the prosecution evidence, however, does indicate that the accused had indulged voluntarily in causing grievous injuries to Rano Devi using club as a weapon of offence, which was likely to cause death. 20. We, therefore, do not find the prosecution evidence sufficient to hold the accused guilty of offence punishable under Section 302 RPC as held by the learned Sessions Judge. On the basis of the evidence led by the prosecution, proving the accused to have caused grievous injuries to Rano Devi-deceased, he is found to have committed offence punishable under Section 326 RPC. 21. Accordingly, upsetting his conviction under Section 302 RPC, the accused is convicted under Section 326 RPC and sentenced to 10 years imprisonment and fine of Rs.5,000/- with default sentence of one year. 22. Raj Singh-accused has not appealed against his conviction and sentence recorded under Sections 325 and 323 RPC and rightly so because in view of the evidence of Pushpa Devi, the injured eye witness, and the other eye witness, there is no scope for interference with his conviction and sentence under Sections 325 and 323 RPC. 23. Accordingly, the accused is ordered to suffer sentence, under Sections 326, 325 and 323 RPC, pursuant to his conviction for these offences. The sentences are ordered to run concurrently. 24. This Confirmation Reference is disposed of accordingly.