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2020 DIGILAW 650 (RAJ)

Nanu Singh v. State of Rajasthan

2020-09-09

KUMARI PRABHA SHARMA, SANDEEP MEHTA

body2020
JUDGMENT Sandeep Mehta, J. - This appeal under Section 374 (2) CrPC has been preferred by appellant Nanu Singh S/o Ram Singh for assailing the judgment dated 05.11.2015 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Cases, Pratapgarh in Sessions Case No.32/2013, whereby he has been convicted for the offence under Section 302 IPC and sentenced to undergo life imprisonment alongwith a fine of Rs.1000/- and in default of payment of fine, further to undergo rigorous imprisonment of one month. 2. Briefly stated, the facts relevant and essential for disposal of the appeal are noted herein below. 3. Tulsiram (P.W.4) presented a written report (Ex.P/7) at the Police Station Chhoti Sadari on 20.04.2013 at 01.00 p.m. alleging inter alia that his daughter Ganga Bai (the deceased) was married to the appellant Nanu Singh about 22-23 years ago. Four sons were born from the wedlock, of which Mukesh, aged 15 years was the eldest and Kamlesh, aged 5 years was the youngest. A fresh borewell had recently been dug in the field of Nanu Singh who, along with Ganga Bai and their son were sleeping in the field to guard the same. They had dinner in the field itself. It was alleged that after having dinner, Nanu Singh assaulted Ganga Bai with a stick and spiked weapons with the intention of killing her. After brutally beating Ganga Bai to death, Nanu Singh absconded from the field. The dead body of Ganga Bai was lying there. On the basis of this report, FIR No.115/2013 came to be registered at the Police Station Chhoti Sadari for the offence under Section 302 IPC and investigation was commenced. 4. During the course of investigation, Shanti Lal (P.W.1), son of the appellant and the deceased, gave ocular testimony to the effect that his father had assaulted him and his mother. The dead body of Ganga Bai was subjected to postmortem by a Medical Board constituted at the Government Hospital, Pratapgarh, which issued a postmortem report (Ex.P/13), taking note of 14 injuries in the form of bruises, abrasions, diffused swellings and dislocation of left shoulder on the dead body of Smt. Ganga Bai. The cause of death was opined to be neurogenic shock due to multiple bruises and other injuries caused to the deceased. The cause of death was opined to be neurogenic shock due to multiple bruises and other injuries caused to the deceased. The appellant was arrested vide arrest memo Ex.P/8 and the blood-stained shirt worn by him at the time of arrest, which was allegedly was seized vide seizure memo Ex.P/9. Acting in furtherance of the information provided by the accused under Section 27 of the Evidence Act, the Investigating Officer proceeded to recover a blood-stained bamboo stick from inside his house vide seizure memo Ex.P/10. After concluding the investigation, a charge-sheet came to be filed against the appellant-accused for the offences under Sections 302 and 323 IPC. 5. As the offence under Section 302 IPC was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions Judge, Pratapgarh, from where it was transferred to the Court of the Special Judge, SC/ST (Prevention of Atrocities) Cases, Pratapgarh for trial. Charges were framed against the appellant for the offences under Sections 302 and 323 IPC, to which, he pleaded not guilty and claimed trial. 6. The prosecution examined 19 witnesses and exhibited 32 documents to prove its case. Upon being questioned under Section 313 CrPC and when confronted with the circumstances emanating from the prosecution evidence, the accused denied the same and claimed that his brothers were inimical to him and that he had been falsely implicated in this case because of animosity. 7. After hearing the arguments advanced by the learned Public Prosecutor and the Defence counsel and appreciating the evidence available on record, the learned trial court proceeded to convict and sentence the appellant as above. Hence, this appeal. 8. Mr. Kaluram Bhati, learned counsel representing the appellant, vehemently and fervently urged that the entire prosecution case is false and fabricated. The sole prosecution eye-witness, namely, Shanti Lal (P.W.1) did not support the prosecution case and was declared hostile. Thus, nothing can be elicited from his evidence so as to implicate the appellant for the crime. Kamlesh, son of the appellant and the deceased, could not state anything in the court, therefore, his statement was not recorded. Tulsiram, the first informant (P.W.4), has given evidence on the basis of hearsay information and thus, the same cannot be read against the appellant. Kamlesh, son of the appellant and the deceased, could not state anything in the court, therefore, his statement was not recorded. Tulsiram, the first informant (P.W.4), has given evidence on the basis of hearsay information and thus, the same cannot be read against the appellant. Learned counsel further submitted that if at all, the appellant is held responsible for assaulting his wife late Smt. Ganga Bai by virtue of 'REVERSE BURDEN OF PROOF' under Section 106 of the Evidence Act, even then, the offence attributed to him would not travel beyond Section 325 or Section 304 Part II IPC. In this regard, he referred to the statement of Kalu (P.W.10), who stated that the appellant made fervent efforts for taking his injured wife to the hospital. Initially, he tried to board her on the motorcycle of Kalu; then a van was procured, which also did not serve the purpose; then 108 ambulance was called. He, thus urges that there was neither any intention nor the knowledge on part of the appellant to cause such injuries to his wife, which could lead to her death. As per him, the incident appears to have happened at the spur of the moment, in which, some injuries were caused to the lady by a blunt weapon and those too on the non-vital parts of her body. He also referred to the statement of Medical Jurist, Dr. Vijay Kumar Garg (P.W.15), and pointed out that no evidence was given by the doctor that any of the individual injuries caused to the Deceased was sufficient in the ordinary course of nature to cause her death. Rather as per Mr. Bhati, the doctor did not even give positive opinion that the injuries were cumulatively sufficient to cause death to Smt. Ganga Bai. Learned counsel also referred to the cross-examination of the Medical Jurist, wherein, he admitted that none of the internal organs of the deceased were affected by the injuries and that there was no fracture underneath any of the wounds. Thus, as per Mr. Bhati, Smt. Ganga Bai appears to have died because of lack of treatment, rather than as a direct consequence of the injuries caused to her. In support of his contentions, learned counsel for the appellant referred to the judgments of this court in Kapoora Vs. State of Rajasthan,2016 CrLR 1052 (Raj.) and Keshu Meena & Anr. Vs. Bhati, Smt. Ganga Bai appears to have died because of lack of treatment, rather than as a direct consequence of the injuries caused to her. In support of his contentions, learned counsel for the appellant referred to the judgments of this court in Kapoora Vs. State of Rajasthan,2016 CrLR 1052 (Raj.) and Keshu Meena & Anr. Vs. State of Rajasthan through P.P.,2020 (1) CrLR 228 (Raj.) and prayed that the appellant deserves to be acquitted. In the alternative, he urged that the conviction of the appellant should be toned-down from the charge under Section 302 IPC to one under Section 325 or 304 Part II IPC with suitable reduction in the sentence awarded to him. 9. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the learned counsel for the appellant. He urged that there is ample evidence on record of the case to prove that the appellant and the deceased were sleeping together near their tube well, where the incident took place. As many as 14 injuries were inflicted to the deceased in the night time and the appellant failed to offer any explanation for the same. He drew the court's attention to the statement of Kalu (P.W.10), who was called by the appellant to bring a motorcycle on the premise that his wife was not well. Learned Public Prosecutor submitted that if at all it was a case of an unknown assailant having beaten the deceased, then the appellant would have immediately disclosed this fact to Kalu. This, omission on part of the appellant, as per the learned Public Prosecutor, is sufficient to incriminate him for the murder of his own wife. Learned Public Prosecutor also submitted that the accusedappellant did not offer any plausible explanation in his statement under Section 313 CrPC as to how his wife received a significant number of injuries while she was sleeping besides him in the field. He further submitted that the accused-appellant did not offer any explanation regarding the blood-stains found on his shirt and the lathi recovered at his instance, which were both found stained with 'AB' group blood, same as the blood group of the deceased. The rank failure of the accused-appellant to offer any explanation in this regard is sufficient to affirm his guilt. The rank failure of the accused-appellant to offer any explanation in this regard is sufficient to affirm his guilt. Learned Public Prosecutor further submitted that looking to the large number of injuries inflicted to the deceased, the only possible inference would be that the accused intended to kill her. He, therefore, urged that no interference is called for in the impugned judgment and the conviction of the appellant as recorded by the trial court deserves to be affirmed. 10. We have given our thoughtful consideration to the submissions advanced at bar and have thoroughly re-appreciated the evidence led by the prosecution. Suffice it to say that since the child witness Shanti Lal (P.W.1) did not support the prosecution case and as the other child witness Kamlesh could not state anything in the court, manifestly, there is no direct evidence of the incident and the case would have to be adjudged on inferential facts/evidence only. The prosecution has come out with a clear case that the accused-appellant and his wife along with their two children were sleeping together in the field near the tube-well, where Smt. Ganga Bai was assaulted. The accusedappellant did not deny this fact in his statement under Section 313 CrPC. Irrefutable inference regarding the accused-appellant being in proximity of the deceased when she was assaulted can be drawn by the presence of blood-stains on the shirt worn by the accused-appellant, having the same blood group as that of the Deceased, which fact is duly verified by the FSL Report. Furthermore, as per the testimony of Kalu (P.W.10), the appellant called him and informed that his wife was serious and had to be taken to the hospital. Kalu went to the spot on a motorcycle and found that the lady was in such a bad state that she could not be made to sit on the motorcycle. The appellant was admittedly present at the spot. If at all, the assault had been made by some unknown assailant, as claimed by the appellant, then he would have definitely told this fact to Kalu. However, at that point of time, the appellant did not utter anything regarding the manner in which his wife had received multiple injuries. The appellant was admittedly present at the spot. If at all, the assault had been made by some unknown assailant, as claimed by the appellant, then he would have definitely told this fact to Kalu. However, at that point of time, the appellant did not utter anything regarding the manner in which his wife had received multiple injuries. Thus, again the conduct of the appellant immediately after the incident comes under a grave degree of suspicion and his utter failure to offer any explanation whatsoever as to how his wife received the large number of injuries all over her body while she was sleeping nearby him in their field, is sufficient to invoke the "Reverse Burden of Proof" under Section 106 of the Evidence Act against the appellant. As the appellant did not offer any explanation regarding the facts within his exclusive knowledge, the trial court was absolutely justified in drawing an inference that the appellant was the person responsible for assaulting his wife with a stick. To that extent, the findings of the trial court warrant no interference whatsoever. Thus, the argument advanced by the defence counsel that the accused is entitled to complete acquittal is unacceptable and is hence turned down. 11. Now coming to the second limb of argument of Mr. Bhati, that the offence attributable to the accused would not travel beyond Section 325 or 304 Part II IPC. It may be stated that there is no plausible evidence on record of the case to even raise a doubt that the accused had any motive to kill his own wife. They were married for almost 23 years and were having 4 children from the wedlock. None of the maternal relatives of the deceased including the first informant Tulsiram (P.W.4), (father of the deceased), alleged that Smt. Ganga Bai was ever maltreated in the matrimonial home. Only a bald allegation was made that the appellant-accused sometimes used to beat his wife under the influence of liquor. However, this conduct of the appellant by itself would not lead to an inference that he had a motive to kill his wife. Therefore, this court has no hesitation in holding that there was no motive behind the assault made on deceased Ganga Bai. As per the deposition of the Medical Jurist Dr. However, this conduct of the appellant by itself would not lead to an inference that he had a motive to kill his wife. Therefore, this court has no hesitation in holding that there was no motive behind the assault made on deceased Ganga Bai. As per the deposition of the Medical Jurist Dr. Vijay Kumar Garg (P.W.15), the deceased was found having 14 injuries on her body in the form of bruises and abrasions. In cross-examination, the doctor, clearly admitted that none of the internal organs of the deceased were damaged by the injuries. Furthermore, the doctor did not offer any explicit opinion that the cumulative effect of the injuries noticed on the body of the deceased was sufficient to cause her death in the ordinary course of nature. Therefore, we can safely conclude that the appellant had neither the intention nor the knowledge that by assaulting his wife and causing her the injuries in the nature he was inflicting on different non-vital organs of her body, he could cause her death. In addition thereto, as is evident from the testimony of Kalu (P.W.10), immediately after the incident, the appellant-accused called Kalu with his motorcycle in an attempt to take his wife to the hospital. The attempt made to board her on the motorcycle, proved unsuccessful; then the accused-appellant called a van, which also was insufficient to serve the purpose and accordingly, the 108 ambulance was summoned. All these facts are indicative of the sincere endeavour of the appellant to try and save his wife by providing her medical aid. It appears that some sudden quarrel must have taken place between the spouses and in the heat of the moment, the appellant picked up a stick and inflicted injuries thereby to his wife. Having realized that he had badly hurt his wife, the accused-appellant immediately tried to provide her medical aid, but the attempts proved futile. Thus, we are indeed convinced by the contention of the learned counsel for the appellant that the offence attributable to the accused would not travel beyond Section 304 Part II IPC. 12. Accordingly, the appeal deserves to be and is hereby allowed in part. Thus, we are indeed convinced by the contention of the learned counsel for the appellant that the offence attributable to the accused would not travel beyond Section 304 Part II IPC. 12. Accordingly, the appeal deserves to be and is hereby allowed in part. The conviction of the appellant as recorded by the learned Special Judge, SC/ST (Prevention of Atrocities) Cases, Pratapgarh vide the judgment dated 05.11.2015 passed in Sessions Case No.32/2013 for the offence under Section 302 IPC is toned down to one under Section 304 Part II IPC and for this charge, he is sentenced to undergo eight years' rigorous imprisonment and a fine of Rs.1000/-. In default of payment of fine, the appellant shall further undergo one month's simple imprisonment. 13. The record of the trial court be returned forthwith.