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2019 DIGILAW 1990 (RAJ)

Gurdeep Singh v. State of Rajasthan

2019-07-17

ABHAY CHATURVEDI, SANDEEP MEHTA

body2019
JUDGMENT Sandeep Mehta, J. - The appellant herein has been convicted and sentenced as below vide the judgment dated 14.02.2013 passed by learned Addl. Sessions Judge No.1, Hanumangarh in Sessions Case No.08/2012 (CIS No.25/2012): Under Section 302 IPC Life Imprisonment and a fine of Rs.2,000/- and in default of payment of fine further to undergo two months' additional RI. 2. Being aggrieved of his conviction and sentences, the appellant has preferred the instant appeal under Section 374 (2) Cr.P.C. 3. Brief facts relevant and essential for the disposal of the present appeal are noted hereinbelow. 4. On 31.08.2011 at 8:15 am, PS Sadar, Hanumangarh received a telephonic information that a dead body of the Smt. Malkeet Kaur was lying at Agrawal Brick Industry 9 STG Rohi Dabli Kutumbh. Upon this information, at 10:00 am, Shri Ranveer Singh (PW 13), SHO PS Sadar Hanumangarh reached at the place of incident (relevant rojnamcha entry in Ex.P/18A) where at about 11:30 am, the complainant PW.9 Kalu @ Baldev Singh S/o Gurdayal Singh submitted a written report Ex.P/13 alleging inter alia that he was a resident of Ward No. 1 Dabli Bas Maulvi. He works at Naamdaari brick kiln and his aunt Malkeet Kaur used to work at Agrawal Brick industry. On 31.08.2011, at 7:30 am, his aunt's son Sewak Singh (PW.10) came to meet him at Naamdaari brick kiln and told that on the previous day his father Gurdeep Singh had come after having seen a plot at village Dabli Rajasthan. At about 5-6 pm in the evening, he quarrelled with his mother and beat her up due to which his mother did not cook any meals and they went to sleep on empty stomachs on the terrace. In the night at about 10:30- 11:00 pm, he woke up upon hearing his mother's cries and saw that Gurdeep Singh was beating his mother and thereafter he pushed her from the terrace to the floor below. He got frightened and went back to sleep. In the morning when he woke up and came downstairs, he saw that his mother was lying on the floor inside the room and a blanket was put to cover her up. He called his mother and removed the blanket upon which he saw that she was bleeding from her ears and injuries were visible on her neck. His mother was not responding. He called his mother and removed the blanket upon which he saw that she was bleeding from her ears and injuries were visible on her neck. His mother was not responding. On getting to know about this incident the complainant went along with Sewak Singh (PW.10) to the place of incident and saw that the dead body of his aunt was lying inside the room. It was further alleged in the said report that it was his aunt's second marriage. Her previous husband had died 2 years prior to the date of the incident whereafter she married Gurdeep Singh. After her second marriage, she used to reside with her husband Gurdeep Singh at chak 9 CYM Rawatsar but due to some rift between them, she had started living at the Ashok Brick Factory, 3-4 months ago with her children and was raising them by doing labor jobs. It was further alleged that about 6-7 days prior to the incident, Gurdeep Singh came and started living with the deceased and her children at her house and that he had killed Smt. Malkeet Kaur by throttling her neck on 30.08.2011. Upon this report, an FIR No. 242/2011 (Ex. P/19) was lodged for the offence under section 302 IPC at PS Sadar Hanumangarh. 5. After receiving the aforesaid FIR (Ex.P/19), the SHO PS Sadar, Hanumangarh, Shri Ranveer Singh (PW.13) commenced investigation. He prepared following documents during the course of formal investigation:- S.No. Fard Exhibits 1. Panchayatnama Lash -Smt. Malkeet Kaur Ex.P/5 2. Fard Surat Haal Lash Ex.P/6 3. Seizure memo of a blood stained brick Ex.P/7 4. Seizure memo of control soil Ex.P/8 5. Site Inspection Plan Ex.P/9 6. He recorded the statements of witnesses, present at the spot. The dead body of Smt. Malkeet Kaur was subjected to postmortem at the Government Hospital, Hanumangarh Town by a Medical Board on 31.08.2011 which issued the postmortem report (Ex.P/11). The cause of death was opined to be cardio respiratory failure secondary to asphyxia. Thereafter, the dead body was handed over to her brother Mahendra Singh and nephew Kalu @ Baldev (PW.9) for cremation. The cause of death was opined to be cardio respiratory failure secondary to asphyxia. Thereafter, the dead body was handed over to her brother Mahendra Singh and nephew Kalu @ Baldev (PW.9) for cremation. The SHO Shri Ranveer Singh (PW.13) was, thereafter transferred to Srigangangar and thus, the investigation was handed over to Mahendra Singh Dutt (PW.12) who arrested the accused-appellant vide arrest memo (Ex.P/1), conducted requisite investigation and proceeded to file chargesheet against the accused in the competent court for the offence under Section 302 IPC. Since the offence was sessions triable, the case was committed and transferred to the court of learned Addl. Sessions Judge No.1, Hanumangarh for trial. The trial court framed charge for the offence under Section 302 IPC against the accused who pleaded not guilty and claimed trial. The prosecution examined as many as 15 witnesses and exhibited 23 documents in support of its case. Upon being questioned under Section 313 Cr.P.C. and when confronted with the circumstances appearing in the prosecution evidence, the accused denied the same and claimed to have been falsely implicated in this case. He stated that he was not present at the place of incident on the relevant date and that he did not murder Smt. Malkeet Kaur. He claimed that at the time of incident, he was at 9 YCM Rawatsar and used to reside separately from his wife as they were not on talking terms. 7. Upon hearing the arguments advanced by the learned Public Prosecutor and the learned defence Counsel and after appreciating the evidence available on record, the learned trial judge proceeded to convict and sentence the appellant as above by the impugned judgment dated 14.02.2013, which is assailed in the instant appeal. 8. Learned Counsel Shri Khichi representing the appellant vehemently and fervently urged that the entire prosecution case is false and fabricated. The material prosecution witnesses including the first informant PW.9 Kalu and PW.8 Gurdayal Singh, brother-in-law of the deceased Smt. Malkeet Kaur did not support the prosecution case and were declared hostile. He urged that as a matter of fact, the deceased Smt. Malkeet Kaur fell down from the terrace where she was sleeping in the night and expired thereby. He further contended that the evidence of the child witness Sewak Singh (PW.10) is absolutely unreliable. He urged that as a matter of fact, the deceased Smt. Malkeet Kaur fell down from the terrace where she was sleeping in the night and expired thereby. He further contended that the evidence of the child witness Sewak Singh (PW.10) is absolutely unreliable. The witness was born from the first marriage of Smt. Malkeet Kaur and soon after the incident, he has been living with Balvinder Singh's mother i.e., his grandmother. As per Shri Khichi, the child has been tutored to give evidence against the appellant for bias motives. Shri Khichi submits that as per the evidence of Sewak Singh (PW.10), he saw that the accused assaulted his mother and threw her from the top of the terrace. He submits that the conduct of the witness in going back to sleep and not raising any alarm despite witnessing the assault makes his testimony doubtful. He further submits that the body of Smt. Malkeet Kaur was found lying inside the house covered with a blanket and the prosecution has failed to give any evidence to show as to how the dead body came to be shifted from outside the house to the inside of the house. He further submitted that PW.11 Smt. Amarjeet Kaur, being the sister of the deceased also did not support the prosecution story and was declared hostile. He further urged that the theory portrayed by the prosecution which is based on evidence of child witness that the deceased was throttled to death is belied by the evidence of PW.6 Dr. Pradeep Saharan, who admitted that no external marks of strangulation were noticed on the neck of the deceased. Thus, as per him, it is clear that the deceased Smt. Malkeet Kaur fell down from the terrace of the house and as a result thereof, her neck broke, causing fracture of the hyoid bone. He thus, urges that direct as well as circumstantial evidence, available on record is inconsistent with the guilt of the accused and hence, the impugned judgment deserves to be set aside and the accused is entitled to an acquittal. 9. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by learned defence counsel. He thus, urges that direct as well as circumstantial evidence, available on record is inconsistent with the guilt of the accused and hence, the impugned judgment deserves to be set aside and the accused is entitled to an acquittal. 9. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by learned defence counsel. He urged that PW.9 Kalu, the first informant, admitted that he lodged the report (Ex.P/13) with the SHO and thus even though, he was declared hostile, the fact that the witness admitted to have given the report (Ex.P/13) would entitle the prosecution to draw an inference that he is giving false evidence after joining hands with the accused-appellant. He urged that PW.11 Amarjeet Kaur, being the sister of the deceased Smt. Malkeet Kaur, despite turning hostile stated that Gurdeep Singh and Malkeet Kaur used to quarrel with each other. Malkeet Kaur used to complain to her that the accused Gurdeep Singh used to beat her often. The witness also stated that 6 to 7 days before the incident, the accused Gurdeep Singh apologized for his previous conduct and started living with the deceased Smt. Malkeet Kaur. As per the learned Public Prosecutor, no cross-examination was conducted from the said witness on this aspect of the matter that the accused had resumed his relationship with the deceased and was living with her at the brick kiln of Ashok where the incident took place. He further submitted that the evidence of child witness Sewak Singh, being the son of the deceased (PW.10) is unimpeachable and of sterling-worth. Sewak Singh (PW.10) stated that the accused had resumed living with his mother 5 to 6 days before the incident. He used to quarrel with her. It was his mother's second marriage with Gurdeep Singh because his father Balvinder Singh to whom she was earlier married had expired. On the fateful day, the accused-appellant Gurdeep Singh quarrelled with his mother in the evening at about 6 to 7 O' clock at the brick kiln. All of them were sleeping on the terrace. In the night, he heard noise of his mother crying on which he woke up and saw that Gurdeep Singh was beating his mother. The witness categorically stated that Gurdeep Singh throttled his mother and then threw her down from the terrace. All of them were sleeping on the terrace. In the night, he heard noise of his mother crying on which he woke up and saw that Gurdeep Singh was beating his mother. The witness categorically stated that Gurdeep Singh throttled his mother and then threw her down from the terrace. The witness further explained that he became frightened and thus he did not raise any hue and cry. In the morning, he called out his mother and saw her lying inside the room with a blanket covering her body. He immediately rushed to his cousin brother Kalu (PW.9) who lodged the report at the Police Station. Learned Public Prosecutor submits that nothing contradictory was elicited in the cross-examination of the witness which can detract his evidentiary worth. He urges that the evidence of the child witness is duly corroborated by the medical testimony as deposed by Dr. Vinod Katewa (PW.7), who was one of the members of the Advisory Board which carried out postmortem upon the body of deceased Smt. Malkeet Kaur on 31.08.2011 and issued a postmortem report (Ex.P/11). The medical board noticed numerous abrasions on the hands and legs of the deceased, a contusion at the right mastoid region and a lacerated wound at the right ear lobe region of the deceased and opined the cause of death to be cardio respiratory failure secondary to asphyxia following throttling. Learned public prosecutor submits that by no stretch of imagination can it be believed that injuries indicating strangulation could be suffered by a person who falls from the terrace. He contended that no such suggestion was given by the defence to the medical officer that the injuries noticed on the body could be caused if a living person fell from the terrace. He urges that the prosecution has proved its case against the accused-appellant beyond all manner of doubt and thus, the trial court was perfectly justified in convicting the appellant for the charge of murdering his wife Smt. Malkeet Kaur. On these submissions, he implored the Court to dismiss the appeal and affirm the impugned judgment. 10. We have given our thoughtful consideration to the submissions advanced at Bar and have re-appreciated and sifted the evidence available on record threadbare and carefully perused the impugned judgment. 11. On these submissions, he implored the Court to dismiss the appeal and affirm the impugned judgment. 10. We have given our thoughtful consideration to the submissions advanced at Bar and have re-appreciated and sifted the evidence available on record threadbare and carefully perused the impugned judgment. 11. The admitted facts and circumstances as available on record clearly establish that the deceased Smt. Malkeet Kaur was earlier married to one Balvinder Singh, who expired about 4 years prior to the incident. Thereafter, Smt. Malkeet Kaur married the accused-appellant Gurdeep Singh. Smt. Malkeet Kaur used to work on the brick kiln of Ashok (PW.4) and she used to live with her children at the kiln itself. The accused-appellant Gurdeep Singh quarrelled with Smt. Malkeet Singh and started living separately at Rawatsar for some time. PW.10 Sewak Singh, being the son of the deceased and PW.11 Smt. Amarjeet Kaur, being the sister of the deceased have given categoric evidence to the effect that 6 to 7 days before the incident, Gurdeep Singh resumed living with Smt. Malkeet Kaur at Ashok Brick Kiln after apologizing to her. The accused himself, upon being questioned under Section 313 Cr.P.C. stated that he was not on speaking terms with his wife. However, upon careful appreciation and evaluation of the evidence of PW.10 Sewak Singh and PW.11 Smt. Amarjeet Kaur, we are duly satisfied that the witnesses have given a truthful narration when they stated that the appellant resumed living with Smt. Malkeet Kaur 6 to 7 days before the date of incident and there is no reason for us to doubt their testimony. No doubt, Kalu (PW.9), the first informant was declared hostile as he did not support the prosecution case but the fact remains that he admitted that he lodged the report (Ex.P/13) with the police. Thus, his retraction from the version, as set out in the FIR has to be taken with a pinch of salt. Since the witness - Kalu admitted that he lodged the FIR with the police and thus, to that extent, his testimony can be relied upon. We are least convinced by the contention of the defence counsel that PW.10 Sewak Singh, being a child is not a witness of sterling worth. We have examined his testimony in detail and found that he understood the implications of the questions put to him and answered them rationally and truthfully. We are least convinced by the contention of the defence counsel that PW.10 Sewak Singh, being a child is not a witness of sterling worth. We have examined his testimony in detail and found that he understood the implications of the questions put to him and answered them rationally and truthfully. The defence conducted prolonged cross-examination, running into almost two and a half pages from the child. Nothing significant was elicited in the cross-examination of the witness which can detract from the reliability of his evidence. The contention of the defence counsel that the conduct of the witness in keeping silent and not raising a hue and cry even after seeing the accused assaulting his mother makes his testimony doubtful, is absolutely untenable. The boy was just about 12 years of age on the date of incident and thus, the explanation offered by him that he became frightened on seeing the accused assaulting his mother is absolutely plausible. The statement of the boy was recorded under Section 161 Cr.P.C. on the very day of lodging of the FIR i.e,. 31.08.2011 wherein he clearly stated that the accused first assaulted his mother and then strangulated her to death. The allegation so levelled by the child witness finds wholesome corroboration from the medical evidence as deposed by PW.7 Dr. Vinod Katewa, who stated that the cause of death of Smt. Malkeet Kaur was strangulation and the witness proved the Postmortem report (Ex.P/11) as per which, the deceased was found suffering from following injuries:- 1. Abrasions of varying length & breadth were noticed over left forearm, left leg, right forearm, right neck, right foot. 2. A contusion of 1 x 1 inch in right mastoid region. 3. A lacerated wound 1 x 1 cm over right ear loge region. 12. The cause of death as opined by the doctor was cardiorespiratory failure to asphyxia following throttling and all the injuries were ante-mortem in nature. Underneath the neck injury, hyoid bone was found fractured bilaterally. 13. Having examined the cross-examination conducted by the defence from the medical officer Dr. Pradeep Saharan (PW.6) and Dr. Vinod Katewa (PW.7) and after appreciating the nature and location of injuries suffered by the deceased, we are of the firm view that the injuries of the kind suffered by the deceased could not have been caused by a fall. 13. Having examined the cross-examination conducted by the defence from the medical officer Dr. Pradeep Saharan (PW.6) and Dr. Vinod Katewa (PW.7) and after appreciating the nature and location of injuries suffered by the deceased, we are of the firm view that the injuries of the kind suffered by the deceased could not have been caused by a fall. The contention of defence counsel that the deceased was sleeping on the terrace in the night and she accidently fell down and met an accidental death is totally unacceptable when we minutely examine the statement of PW.7 Dr. Vinod Katewa. It is noteworthy that not a single suggestion was given to the witness that the injuries of the nature noticed by the Medical Board while issuing the postmortem report (EX.P/11) could have been caused by a fall from the height. The fact that the woman was pushed off from the terrace after strangulated her and the dead body was shifted inside the Bhatta makes it amply clear that the accused-appellant moved the body so as to hide the murderous assault. As we have found that the evidence of PW.10 Sewak Singh, is wholly reliable and since his testimony is sufficient to establish the guilt of the accused and as the same gets thoroughly corroborated from the evidence of PW.11 Amarjeet Kaur and PW.7 Dr. Vinod Katewa as well as the evidence of Investigating Officer discussed above, we are of the firm opinion that the trial court was absolutely justified in convicting and sentencing the appellant as above by the impugned judgment dated 14.02.2013. The judgment of the trial court does not suffer from any infirmity factual or legal warranting interference therein. Hence, the appeal of the appellant is dismissed as being devoid of merit. Record be returned to the trial court forthwith.