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2019 DIGILAW 2084 (RAJ)

Daul Singh v. State of Rajasthan

2019-07-31

ABHAY CHATURVEDI, SANDEEP MEHTA

body2019
JUDGMENT Sandeep Mehta, J. - Both these appeals have been filed by the accused Daul Singh for assailing the judgment dated 30.06.1993 passed by the learned Sessions Judge, Jodhpur in Sessions Case No.237/1992, whereby the accused appellant was convicted for the offence under Section 302 IPC and was sentenced to undergo life term imprisonment. D.B. Criminal Appeal No.330/1993 is a represented appeal, additionally, the accused forwarded another appeal from jail, which came to be registered as D.B. Criminal Appeal No.457/1993. The sentences awarded to the accused appellant were suspended by co-ordinate Division Bench of this court vide order dated 28.07.1995, by effect whereof, the accused was required to mark his presence in the trial court annually. By the order dated 12.01.1999, the accused was directed to remain present in this court on 20.04.1999. However, he failed to comply with the said direction, whereupon, the notice of cancellation of bail was issued to the accused and vide order dated 16.11.1999, the bail granted to the accused was cancelled and he was directed to be taken in custody. In furtherance of the said direction, the accused was re-arrested on 17.01.2000 and since then, he is in custody. 2. We are informed by the learned Public Prosecutor that the State Government has sanctioned permanent parole to the accused appellant, but owing to a strife with his family members, no one is ready to stand as surety on his behalf and thus, the accused continues to languish in jail. 3. Mr. B.S. Rathore, learned counsel, who filed the represented appeal on behalf of the accused-appellant, pleaded no instructions, upon which, we appointed Mr. Amardeep Lamba as Amicus Curiae to represent the accused in the jail appeal as well as the represented appeal. 4. We have heard and considered the arguments advanced by Mr. Amardeep Lamba and the learned Public Prosecutor and have gone through the record. The appellant is alleged to have murdered his own brother Kheem Singh in the night intervening 17th and 18th September, 1992. The written report (Ex.P/1) of the incident was lodged by Ram Singh, father of the deceased, to the SHO, Police Station Luni on 18.09.1992 at 05.00 a.m. It was alleged in the FIR that in the night at about 11 o'clock, the informant's daughter Chhail Kanwar woke him up and told him that Kheem Singh was being beaten by Daul Singh. On this, the informant rushed towards the place of occurrence, where he saw Kheem Singh lying outside the chowk (courtyard). Daul Singh was looking at him. On sensing the presence of the informant, Daul Singh ran away from the spot. The informant went near Kheem Singh and noticed a sharp weapon injury on his head, which was profusely bleeding. Numerous other injury marks were noticeable on the body of Kheem Singh. With great difficulty, Kheem Singh told the informant that he was sleeping in the chowk when Daul Singh came there and inflicted a blow on his head. Thereafter, he was dragged out and Daul Singh was trying to throttle him when Chhail Kanwar came around. The informant and Chhail Kanwar lifted Kheem Singh and took him back into the chowk and made him to lie down on the cot. Thereafter, Chandar Singh, uncle of the deceased, was called. Vaidhya Shyam Lal was also called, who examined Kheem Singh and informed that he had died. Daul Singh was informant's elder son, whereas Kheem Singh was his younger son. Daul Singh was married, whereas, Kheem Singh was unmarried. Daul Singh had got the family property partitioned about two months back. He was not satisfied with his share after partition and thus, he had killed Kheem Singh to reak vengenance. On the basis of the report aforesaid, an FIR No.153/1992 was registered at the Police Station Luni for the offence under Section 302 IPC. The accused appellant was arrested. The site inspection plan was prepared. The dead body of Kheem Singh was subjected to postmortem. The accused was arrested and charge-sheet came to be filed against him for the offence under Section 302 IPC. The trial court framed charge against the accused for the above offence, who pleaded not guilty and claimed trial. The prosecution examined as many as 18 witnesses and exhibited 19 documents to prove its case. Upon being questioned under Section 313 CrPC and when confronted with the prosecution allegations, the accused denied the same but did not offer any explanation. No evidence was led in defence. After hearing the arguments of the learned Public Prosecutor and the defence counsel and after appreciating the evidence available on record, the learned Sessions Judge proceeded to convict and sentence, the appellant as above. Hence, this appeal. 5. We have heard and appreciated the arguments advanced by Mr. No evidence was led in defence. After hearing the arguments of the learned Public Prosecutor and the defence counsel and after appreciating the evidence available on record, the learned Sessions Judge proceeded to convict and sentence, the appellant as above. Hence, this appeal. 5. We have heard and appreciated the arguments advanced by Mr. Lamba and have minutely re-appreciated the evidence available on record. The principal contention of Mr. Lamba for assailing the impugned judgment was that there is grave contradictions in the ocular evidence and the medical evidence inasmuch as that the eye-witness Chhail Kanwar (P.W.10) stated that the injury on the body of the deceased Kheem Singh was caused by Farasi, whereas the medical evidence in the form of testimony of Dr. N.S. Kothari (P.W.13) reveals that all the injuries caused to the deceased were inflicted by a blunt weapon. It was his submission that this discrepancy and contradiction goes to the root of the matter and demolishes the prosecution case. The star prosecution witness is none other than Chhail Kanwar (P.W.10), aged 16 years. In her sworn testimony, she categorically stated that Daul Singh and Kheem Singh were her real brothers. She was sleeping in the house. On hearing a hue and cry, she woke up. Her brother Kheem Singh was sleeping under the shed. She saw Daul Singh assaulting Kheem Singh by a Farsi. She ran towards her father, woke him up and told him about the incident. Her father came there running. Daul Singh had dragged Kheem Singh and thrown him at the parapet and was trying to throttle him. On sensing the presence of his father and sister, Daul Singh ran away. Kheem Singh was alive at that time. He told the witnesses stated that Daul Singh had assaulted him. The Vaidya of the village was called, who examined Kheem Singh and declared him to be dead. The incident took place owing to a dispute over partition of family property. On going through the cross-examination conducted from Chhail Kanwar, we find that nothing significant was elicited by the defence, which can discredit the version set forth by her in her examination in chief. 6. Ram Singh (P.W.11), being the father of the deceased as well as the accused, have fully supported and corroborated the testimony of Chhail Kanwar and proved the written report (Ex.P/1). 7. Dr. 6. Ram Singh (P.W.11), being the father of the deceased as well as the accused, have fully supported and corroborated the testimony of Chhail Kanwar and proved the written report (Ex.P/1). 7. Dr. N.S. Kothari (P.W.13) conducted postmortem upon the dead body of the deceased Kheem Singh and noticed as many as 9 injuries on the body of the deceased, which were in the nature of lacerated wounds, bruises and abrasions. The injury No.1, being the head injury, resulted into a depressed fracture of occipital bone rupturing of the bone with brain matter and blood coming out. Likewise, the injury No.9 was caused on the abdominal region, which resulted into rupture of spleen. The head injury and the rupture of spleen were opined to be life threatening and sufficient in the ordinary course of nature to cause death. The doctor admitted in his cross-examination that the injuries were not caused by a sharp weapon. 8. Having appreciated the evidence of Chhail Kanwar (P.W.10), Ram Singh (P.W.11) and Dr. N.S. Kothari (P.W.13) and the other material witnesses, we feel that the weapon, which is attributed to the accused by Chhail Kanwar, being a Farsi, used from reverse side would cause blunt injuries. Chhail Kanwar was a young girl, aged about 16 years as on the date of the incident. She was suddenly waken from her slumber, when she heard fervent cries of her brother Kheem Singh. In her crossexamination, she stated that she saw the incident in the moonlight, thus, she would not be in a position to precisely discern as to the side from which the weapon was used by the accused. In any event, we are of the firm opinion that the evidence of the eye-witness Chhail Kanwar is duly corroborated by the statement of Ram Singh, the first informant, and the medical opinion and there is no reason to doubt the same. 9. In view of the discussion made above, we feel that the learned trial court appreciated the evidence available on record in an absolutely just, apropos and logical manner and came to the only possible conclusion, while recording guilt of the accused. The findings recorded by the trial court in the impugned judgment dated 30.06.1993 are sound and based on proper appreciation of evidence and the same do not warrant any interference whatsoever in these appeals. The same do not warrant any interference. The findings recorded by the trial court in the impugned judgment dated 30.06.1993 are sound and based on proper appreciation of evidence and the same do not warrant any interference whatsoever in these appeals. The same do not warrant any interference. Hence, we find no merit in the instant appeals. However, before parting, we may observe that the accused has reportedly remained in custody for more than 20 years. His permanent parole application has also been sanctioned by the State Government, but he is not being released from custody because nobody is ready to stand as surety on his behalf. We, thus, observe that the concerned authorities of the State Government may sympathetically consider releasing the accused from custody on personal bond after enquiring that his release does not pose any threat to the life of any of his family members. 10. With these observations, both the appeals are dismissed as being devoid of merit. 11. The record be returned to the trial court forthwith.