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2019 DIGILAW 2109 (RAJ)

Sawai Singh v. State of Rajasthan

2019-08-05

ABHAY CHATURVEDI, SANDEEP MEHTA

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JUDGMENT : Abhay Chaturvedi, J. 1. Instant criminal appeal under Section 374(2) Cr.P.C. has been preferred by the accused appellant Sawai Singh against the judgment and order of conviction dated 19.12.2012 passed by the learned Sessions Judge, Rajsamand in Sessions Case No. 86/2011, whereby, the learned trial Court convicted him for the offence under Section 302 IPC and sentenced him to undergo life imprisonment. 2. Brief facts giving rise to this appeal are that on 19.04.2011, Roshan Singh (PW-1) submitted a written report (Ex. P/1) to SHO, Police Station Deogarh District Rajsamand alleging inter alia that his younger sister Smt. Ladu got married to Sawai Singh @ Shiv Singh, accused-appellant about 18 years ago. After marriage, he used to pick quarrels incessantly with his sister (the deceased). On many occasions, the differences between them were resolved by the members of families and community. It was further alleged that on 18.04.2011, at about 08:00 p.m., his maternal uncle, (Mama) Shri Ram Singh S/o. Bhoor Singh, resident of Pandi, informed him telephonically that his sister Ladu had been killed by her husband and asked him to reach at village Anoppura, thereupon, he alongwith his father, brother and other members of his family, rushed to village Anoppura where they found that the police had already arrived and they were informed that on the same day at about 7.30 p.m., his sister (deceased) was preparing food, when, Sawai Singh reached there in an intoxicated state and started quarrelling with his sister and inflicted iron rod (Sabbal) blows on her head and other parts of the body which resulted into her death on the spot. 3. On the basis of this report, a formal F.I.R. No. 102/11 (Ex. P/14) was registered at Police Station, Deogarh District Rajsamand for the offence under Section 302 IPC and the investigation commenced. During the investigation, Photographs of the deceased Smt. Ladu were taken. The dead body of the deceased Smt. Ladu was subjected to post mortem examination by PW-16 Dr. Suresh Chand and PW-17 Dr. Sushil Jingar who opined the cause of death of the deceased to be Neurogenic shock due to fatal head injury. During investigation, following documents were prepared by the investigating officer: 1. Inquest Memo Ex.P/3 Dt.19.4.11 2. Fard Supurdgi Lash Ex.P/5 Dt.19.4.11 3. Site Plan Ex.P/2 Dt.19.4.11 4. Seizure Memo of blood stained clothes of the deceased. Ex.P/4 Dt.19.4.11 5. Sushil Jingar who opined the cause of death of the deceased to be Neurogenic shock due to fatal head injury. During investigation, following documents were prepared by the investigating officer: 1. Inquest Memo Ex.P/3 Dt.19.4.11 2. Fard Supurdgi Lash Ex.P/5 Dt.19.4.11 3. Site Plan Ex.P/2 Dt.19.4.11 4. Seizure Memo of blood stained clothes of the deceased. Ex.P/4 Dt.19.4.11 5. Seizure Memo of blood stained Soil and Control Soil Ex.P/6 Dt.19.4.11 4. The statements of the material witnesses were recorded under Section 161 Cr.P.C. by the investigating officer. The accused-appellant was arrested and his blood stained clothes were recovered vide Seizure Memos Ex. P/8 and Ex. P/10. The weapon of offence (Sabbal) was recovered vide Seizure Memo Ex. P/9. Sharwan Singh, brother of accused-appellant was medically examined and his MLR was procured (Ex. P/12). The recovered articles viz. blood smeared soil, control sample, clothes of the deceased and the accused-appellant, weapon of the offence (Sabbal) and blood stained BELAN were sent to FSL for chemical examination. The FSL, after examination issued its report (Ex. P/22) whereby 'O' group human blood was found on these articles except the underwear. Thereafter, the police after thorough investigation, submitted charge sheet against the accused-appellant for the offence under Section 302 IPC before the Magistrate concerned. 5. Since, the offence under Section 302 IPC was exclusively triable by Court of Sessions, the case was committed to the trial Court. 6. Learned trial Court framed, read over and explained the charge for the offence under Section 302 IPC to the accused-appellant who pleaded not guilty and sought trial. The prosecution examined as many as 19 witnesses and 22 documents were exhibited in support of its case. The accused was questioned under Section 313 Cr.P.C. and was confronted with the circumstances appearing against him in prosecution evidence. He denied the same and claimed to be innocent. He further claimed in his statement that his father-in-law Jassu Singh and brother-in-law Roshan Singh wanted to grab his money and therefore, he had been falsely implicated in this case. He further stated that at the time of the incident, he was not at home. However, no oral evidence was led in support of defence and only two documents were exhibited. 7. He further stated that at the time of the incident, he was not at home. However, no oral evidence was led in support of defence and only two documents were exhibited. 7. After hearing and appreciating the submissions advanced by the defence and the prosecution and appreciating and evaluating the evidence available on record, the learned trial Court, proceeded to convict and sentenced the appellant as above. 8. Challenging the judgment and order of the learned trial Court dated 19.12.2012, learned counsel for the appellant submits that the trial Court has committed grave error in recording guilt of the accused appellant for the offence under Section 302 IPC. There is no legal evidence so as to hold the accused appellant guilty of the said offence. The eye witnesses to the occurrence PW-6 Shrawan Singh and PW-12 Warad Singh have been declared hostile by the prosecution and other witnesses PW-10 Madan Singh and PW-11 Makan Singh did not say anything to support the prosecution case. It was further alleged that the trial Court has relied upon the FSL report (EX.P/22) but the Investigating Officer and Maalkhana Incharge-Ramchandra did not depose with regard to sealing and safe-keeping of the seized articles and transmission thereof in the sealed condition to the FSL and thus the FSL report loses its importance in the absence of proper link evidence. It was further submitted that PW-5 Kalyan Singh was not an eye witness to the occurrence but despite that he falsely deposed in the trial Court as an eye witness to the occurrence and stated that he saw the accused appellant inflicting blows on the deceased. His evidence is not reliable and should be discarded. Learned counsel for the appellant thus, implored the Court to accept the appeal, set aside the impugned judgment of conviction dated 19.12.2012 passed by the learned Sessions Judge, Rajsamand. 9. On the other hand, the learned Public Prosecutor, while refuting the submissions made by learned counsel for the appellant, supported the judgment passed by the trial Court and further submitted that though important witnesses with regard to the recovery of articles could not be produced by the prosecution but PW-5 Kalyan Singh and PW-11 Makan Singh have clearly stated that the accused appellant had inflicted injuries upon the deceased which resulted into her death. The medical evidence also supports and corroborates the evidence of these witnesses. The medical evidence also supports and corroborates the evidence of these witnesses. It was further submitted that the homicidal death of the deceased Smt. Ladu Kanwar @ Ladu was committed inside the house of the accused appellant, so it was incumbent upon the accused appellant to explain the circumstances in which the deceased expired by violent means but he failed to offer any explanation whatsoever, therefore, an adverse inference has to be drawn against the accused appellant for holding him guilty for the alleged offence under Section 302 IPC. In the last, the learned Public Prosecutor 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 the evidence available on record threadbare and carefully perused the impugned judgment. 11. A perusal of the material available on record shows that as per the prosecution case, the deceased Smt. Ladu Kanwar @ Ladu was married to the accused appellant who used to treat the deceased with cruelty and often picked up quarrels with her. On many occasions, the matter was reconciled by the members of the family and society. In the light of the statements of PW-1 Roshan Singh, PW-2 Ram Singh, PW-13 Amar Singh, PW-8 Jassu Singh, brothers and father of the deceased and also the statement of PW-5 Kalyan Singh and PW-10 Madan Singh, it can be safely concluded that there is ample evidence on record to prove that the relations between the accused appellant and the deceased were strained. On 18.4.2011, on the information of PW-10 Madan Singh, the brothers and the father of Smt. Ladu Kanwar @ Ladu reached at the house of the accused appellant where they saw that she was lying dead having injuries on her head. PW-5 Kalyan Singh, clearly stated that the accused appellant inflicted iron rod (sabbal) blows on the deceased while she was preparing food. This witness was not cross-examined by the defence counsel on this aspect of his evidence. Therefore, his testimony remained uncontroverted and deserves to be accepted. This witness (PW-5 Kalyan Singh) is a neighbor of the accused appellant whose house is situated at a distance of just 200 meters from the house of the accused appellant, so his presence at the spot at the time of the incident was absolutely natural. Therefore, his testimony remained uncontroverted and deserves to be accepted. This witness (PW-5 Kalyan Singh) is a neighbor of the accused appellant whose house is situated at a distance of just 200 meters from the house of the accused appellant, so his presence at the spot at the time of the incident was absolutely natural. Though, PW-6 Sawai Singh-brother of the deceased has been declared hostile but he admitted the presence of PW-5 Kalyan Singh at the place of occurrence in his statement. 12. PW-11 Makan Singh stated that on hearing the cries of children, he rushed to the place of incident but by the time he reached, the assault had taken place and Ladu Kanwar had expired. He further stated that the accused-appellant assaulted Smt. Ladu Kanwar and caused her death. He also alleged that there was a scuffle between the accused-appellant and his brother Sharwan Singh (PW-6). No cross-examination was conducted from the witnesses by the learned defence counsel on this point so his evidence remained uncontroverted and hence deserves to be accepted. 13. PW-16 Dr. Suresh Chand who conducted the post - mortem and issued the PMR (Ex. P/15) has opined that the cause of death of the deceased was Neurogenic shock due to fatal head injury. 14. On analysis of the statements of PW-5 Kalyan Singh, PW-11 Makan Singh and PW-16 Dr. Suresh Chand, it is well established that the accused-appellant inflicted the fatal injuries to the deceased by an iron rod while she was preparing food. 15. Apart from that, admittedly, the accused-appellant and the deceased, along with their children used to live together at the house as mentioned in Site Plan (Ex. P/2). Body of the deceased was found at the place marked 'A' in the Site Plan. Thus it was within the special knowledge of the accused-appellant as to what had transpired in the house which led the death of the Smt. Ladu by blunt weapon. Therefore, as per Section 106 of the Evidence Act, it was the duty of the accused-appellant to explain these circumstances. During trial, the statement of the accused-appellant was recorded under Section 313 Cr.P.C., wherein he stated that at the time of the incident he was not at home and that he had been falsely implicated in this case as his father-in-law and brother-in-law wanted his money. During trial, the statement of the accused-appellant was recorded under Section 313 Cr.P.C., wherein he stated that at the time of the incident he was not at home and that he had been falsely implicated in this case as his father-in-law and brother-in-law wanted his money. It was the duty of the accused-appellant to have led evidence in support of his defence of alibi taken in his statement under Section 313 Cr.P.C. Positive evidence was required to be produced and proved to substantiate his statement that he was not at home at the time of the incident but no evidence whatsoever has been produced by him during trial. There is nothing on record which suggests that there was any prior or existing enmity between the accused-appellant and his father-in-law and brother-in-law as deposed by the accused-appellant in his statement under Section 313 Cr.P.C. Even, no question to this effect was put to PW-2 Ram Singh and PW-13 Devi Singh during their cross-examination. Therefore, there is nothing on record which can be treated to be a logical/acceptable explanation of the accused-appellant. Hence, net result is that the accused-appellant has not explained the circumstances in which, his wife died in the matrimonial home and thus, the presumption of guilt of the accused-appellant under Section 106 of the Evidence Act has to be raised in this case and adverse inference deserves to be drawn against him. 16. So far the argument of the accused-appellant that recovery of incriminating article has not been proved by the prosecution essentially as link evidence, a perusal of the material available on record shows that it is sufficient to observe here that in view of the discussion made hereinabove, even if it is assumed that the recovery of the incriminating article has not been proved and FSL report (Ex. P/22) cannot be used against the accused-appellant but the established incriminating facts mentioned above are sufficient to hold the accused-appellant guilty for the offence under Section 302 IPC. 17. In view of the above, we find no reason whatsoever to interfere with the findings recorded by the trial court while convicting the accused - appellant for the offence under Section 302 IPC vide impugned judgment dated 19.12.2012. Therefore, we are of the view that there is no force in the appeal. Consequently, the same is dismissed. 17. In view of the above, we find no reason whatsoever to interfere with the findings recorded by the trial court while convicting the accused - appellant for the offence under Section 302 IPC vide impugned judgment dated 19.12.2012. Therefore, we are of the view that there is no force in the appeal. Consequently, the same is dismissed. The impugned judgment dated 19.12.2012 passed by the learned Sessions Judge, Rajsamand is upheld. 18. The record of the trial court be sent back forthwith.