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2021 DIGILAW 1154 (RAJ)

Subhash Chand v. State Of Rajasthan

2021-07-16

MANOJ KUMAR GARG, SANDEEP MEHTA

body2021
JUDGMENT Manoj Kumar Garg, J.:-- 1. The instant criminal appeal has been filed by the accused appellant under Section 374(2) Cr.P.C. against the judgment dated 03.02.2015 passed by the learned Additional District & Sessions Judge, (Woman Atrocities & Dowry Cases), Sriganganagar in Session Case No.1/2013 by which learned Judge convicted the accused-appellant for offences under Section 302 IPC and sentenced him for life imprisonment and also imposed a fine of Rs.10,000/- and in default of payment of fine, ordered to further undergo a sentence of one year simple imprisonment. 2. Brief facts of the case are that on 19.02.2012, a written report was submitted by one Parmanand Swami at Police Station Ramsinghpur stating therein that the marriage of his sister Sulochana @ Deva was solemnized with accused appellant Subhash Chand about 20 years ago. After some years of marriage, accused Subhash Chand started maltreating and harassing his sister and therefore Panchayat was called to resolve the matter but due to non-settlement of dispute, Smt. Sulochana left her matrimonial home and started living at her parents' house for about two years. Thereafter Panchayat meeting was again held in which the accused Subhash Chand agreed to bring back sister of the complainant but the accused again started misbehaving with Smt. Sulochana and also subjected her to cruelty and also raised doubts on her character. It was further alleged in the complaint that the behaviour of the accused was also not good towards his children. He did nothing to earn livelihood for last 4-5 months and used to gamble. In order to maintain her and family, the sister of the complainant used to do stitching and other miscellaneous work for livelihood. On 16.09.2012, the complainant again tried to convince the accused Subhash Chand through Panchayat but the accused got annoyed and threatened the complainant to face the consequence. Few days prior to death of his sister, the accused even stopped permitting the complainant to talk to his sister and nephews. The complainant alleged that his sister was subjected to mental and physical torture by her husband, father-in-law, mother-in-law and brother-in-law and was murdered by them. 3. On the basis of the above report, the Police registered the FIR against the accused-persons for offences under Sections 498A & 302 IPC and started investigation. After usual investigation, the police filed charge sheet only against the accused-appellant for offence punishable under Sections 306 IPC. 4. 3. On the basis of the above report, the Police registered the FIR against the accused-persons for offences under Sections 498A & 302 IPC and started investigation. After usual investigation, the police filed charge sheet only against the accused-appellant for offence punishable under Sections 306 IPC. 4. The case was committed for trial before the court of Addl. District & Sessions Judge (Woman Atrocities & dowry Cases), Sriganganagar where the prosecution filed an application under Section 216 Cr.P.C. for alteration of charge. After hearing the arguments, the learned trial court also framed charge for offence under Section 302 IPC against the accused-appellant. The accused-appellant pleaded not guilty and claimed trial. 5. At the trial, the prosecution examined as many as 15 witnesses in all. Thereafter the statement of the accused-appellant was recorded under section 313 Cr.P.C. In defence, the accused- appellant examined three witnesses as DW-1 to DW-3. 6. At conclusion of the trial, the learned Addl. District & Sessions Judge (Woman Atrocities & dowry Cases), Sriganganagar vide judgment dated 03.02.2015 acquitted the accused-appellant for offence under Section 306 IPC but convicted him for offence under Section 302 IPC and passed sentence mentioned above. 7. Mr. Ravi Bhansali, Sr. Advocate assisted by Mr. Vipul Dharnia, Adv., learned counsel appearing for the accused-appellant vehemently argued that the judgment passed by the learned trial court is perverse and deserves to be set aside. Learned counsel argued that the prosecution primarily relies upon the testimony of sole eye-witness Rakesh Kumar (PW/7). He submits that so-called eye-witness Rakesh Kumar, son of the deceased, was introduced later on as eye-witness of the incident and his statement was recorded by the Police on the next day i.e. on 20.09.2012 and his subsequent statement was recorded on 09.11.2012 i.e. after one month and twenty days of the occurrence. Counsel further submits that Rakesh Kumar in his statement, deposed that all the accused persons strangulated his mother deceased Smt. Sulochana and due to strangulation she died whereas upon perusal of the postmortem report as well as statement of Dr. Anand Godara (PW-9) would reveal that the deceased died due to asphyxia as a result of hanging. Counsel submits that there are major contradictions between the statement of the eye-witness Rakesh Kumar (PW-7) and in the medical evidence. Anand Godara (PW-9) would reveal that the deceased died due to asphyxia as a result of hanging. Counsel submits that there are major contradictions between the statement of the eye-witness Rakesh Kumar (PW-7) and in the medical evidence. Counsel further submits that the eye-witness Rakesh Kumar (PW-7) specifically stated that all the five accused persons had murdered his mother Smt. Sulochana by strangulation but after investigation the Police filed charge-sheet only against the accused-appellant and exonerated the other accused-persons and during trial other accused-persons were not implicated in the matter. This shows that the eye-witness Rakesh Kumar (PW-7) was a created eye- witness. It was also contended that the defence version was a probable version and once there was a doubt, then benefit of doubt should have been given to the accused person. Counsel submitted that the deceased Smt. Sulochana committed suicide but the trial court ignored all the medical evidence and other aspect of the matter and wrongly convicted the accused-appellant for offence under Section 302 IPC which the prosecution has failed to prove. Therefore, it is prayed that the accused-appellant may kindly be acquitted for offence under Section 302 IPC. 8. Per contra, the learned public prosecutor has supported the impugned judgment and argued that offence committed by the accused-appellant is of very serious nature and the statement of the eye-witness Rakesh Kumar (PW-7) corroborated the story of the prosecution. It was argued that the evidence of eye witness cannot be discarded on the ground that there are minor discrepancies in the statement of eye witness, therefore the appeal filed by the accused-appellant deserves to be dismissed. 9. We have heard the learned counsel for the appellant as well as learned public prosecutor, perused the impugned judgment passed by the learned trial court and also gone through the record of the case. 10. The account of the incident as disclosed by the eye witness needs to be appreciated to sift the grain from the chaff. The eye witness was none other than the son of the deceased and appellant. On perusal of written report filed by the complainant on 19.09.2012, it would reveal that the name of eye-witness Rakesh Kumar (PW-7) was not mentioned therein as eye-witness of the occurrence. The eye witness was none other than the son of the deceased and appellant. On perusal of written report filed by the complainant on 19.09.2012, it would reveal that the name of eye-witness Rakesh Kumar (PW-7) was not mentioned therein as eye-witness of the occurrence. The written report was filed by the complainant on 19.09.2012 at about 11:30 AM but in his statement Rakesh Kumar (PW-7) has stated that on 19.09.2012 at about 11:00 AM, he reached at his maternal grand-father's house and narrated the entire incident to his maternal uncle (Mama) and claimed that his grandfather, grandmother, uncle, aunt and father killed his mother by strangulating. Likewise, he stated that in the night, when the accused persons were strangulating his mother, he immediately made a telephonic call to his maternal uncle (Mama) Parmanand Swami and told him about the incident. At that time, neighbour Gurubachan Singh reached on the spot. In his cross-examination when the eye-witness Rakesh Kumar (PW-7) was confronted with his previous statements Ex-D/7 & Ex-D/8, he discredited those statements. 11. Similarly, the police recovered some broken bangles from the place of incident. With regard to the recovered broken bangles, the so-called eye-witness Rakesh Kumar (PW-7) stated that his mother used to sell bangles and some bangles used to break. 12. Another factor which needs to be taken into consideration is that the so-called neighbour Gurbachan Singh to whom the eye- witness called after the occurrence, has not all been examined by the prosecution. In fact, he was examined by defence side as DW- 1 who deposed that on being called by Rakesh Kumar, he reached at the place of incident and saw that Subhash, Rajendra & Rakesh were bringing down the dead body of deceased Smt. Sulochana. He further deposed that deceased Smt. Sulochana used to sell bangles at her home and the police had collected some broken bangles from the room from where the bangles were sold. 13. In criminal jurisprudence it is well-settled that witnesses are eyes and ears of the Court. Therefore, the testimony of the witnesses has to be supported by corroborative material. Moreover the testimony must be truthful and must inspire the confidence of the Court. 14. The conviction of the accused appellant primarily hinges on the testimony of PW-7 Rakesh Kumar. 13. In criminal jurisprudence it is well-settled that witnesses are eyes and ears of the Court. Therefore, the testimony of the witnesses has to be supported by corroborative material. Moreover the testimony must be truthful and must inspire the confidence of the Court. 14. The conviction of the accused appellant primarily hinges on the testimony of PW-7 Rakesh Kumar. We have undertaken a very close scrutiny of the evidence of PW-7 Rakesh Kumar and the other evidence on record with a view to assess whether the evidence of PW-7 is of such quality that a conviction for the offence of murder can be safely rested on his sole testimony. It is a settled law that on the basis of testimony of a single eye witness, a conviction may be recorded but the Court must be satisfied that the testimony of the solitary eye witness is of such sterling quality that the Court finds it safe to base a conviction solely on the testimony of that witness. In doing so, the Court must test the credibility of the witness by reference to the quality of his evidence. The evidence must impress the Court as wholly truthful, natural and so convincing that the Court finds no hesitation in recording a conviction solely on the basis of the testimony of a single witness. 15. In the present case, the testimony of alleged eye-witness Rakesh Kumar (PW-7) is totally contradicted by the medical evidence. In this regard, we may refer to the statement of Dr. Anand Godara (PW-11) who was a member of Medical Board which conducted autopsy upon the dead-body of Smt. Sulochana. Dr. Anand Godara (PW-11) categorically stated in his examination- in-chief that cause of death of Smt. Sulochana was hanging. It is manifest that the marks of violence in death by strangulation and death by hanging have stark distinction. On going through the statement of Doctor, it becomes clear that the prosecution did not give him even a bald suggestion that the possible cause of death of Smt. Sulochana could have been strangulation and not hanging. The trial court has drawn a conclusion regarding Smt. Sulochana having been strangulated to death. On going through the statement of Doctor, it becomes clear that the prosecution did not give him even a bald suggestion that the possible cause of death of Smt. Sulochana could have been strangulation and not hanging. The trial court has drawn a conclusion regarding Smt. Sulochana having been strangulated to death. If at all any such conclusion was to be drawn, it was obligatory on the part of the Public Prosecutor or the trial Judge to have put a question to the medical jurist to elicit an explanation as to why the cause of death of the lady should not be concluded to be by strangulation instead of hanging as stated by the Jurist. Manifestly thus, there is no foundation beneath the finding recorded by the trial court that Smt. Sulochana was strangulated to death. It is also relevant to note here that in a case of strangulation, there is high probability of marks of violence existing on the dead-body because of resistance. However as per postmortem report (Ex-10) and the evidence of medical jurist, no marks of violence except for the ligature mark were found on the dead-body of Smt. Sulochana, when autopsy was carried out. Moreover, the neighbour Gurbachan Singh (DW-1) to whom the said eye witness informed and called was also not examined by the prosecution and he was examined as a defence witness as DW-1. Upon appreciating the entire evidence, the only logical conclusion that can be drawn is that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. 16. Hon'ble Apex Court in the case of Jagdish and Ors. v. The State of Haryana reported in (2019) 7 SCC 711 has held as follows :- "The question that arises to our mind is that in the mob assault by 13 persons who had surrounded the deceased at night, PW-1 was the sole eye-witness. Even if a light was burning some of them undoubtedly must have had their back to PW-1 making identification improbable if not impossible. The witness has been severely doubted both by the trial court and the High Court to grant acquittal to the other Accused. Can the evidence of a solitary doubtful eye witness be sufficient for conviction? We may have a word of caution here. The witness has been severely doubted both by the trial court and the High Court to grant acquittal to the other Accused. Can the evidence of a solitary doubtful eye witness be sufficient for conviction? We may have a word of caution here. Conviction on basis of a solitary eye witness is undoubtedly sustainable if there is reliable evidence cogent and convincing in nature along with surrounding circumstances. The evidence of a solitary witness will therefore call for heightened scrutiny. But in the nature of materials available against the Appellants on the sole testimony of PW-1 which is common to all the Accused in so far as assault is concerned, we do not consider it safe to accept her statement as a gospel truth in the facts and circumstances of the present case. If PW-1 could have gone to the police station alone with her sister-in-law at an unearthly hour, there had to be an explanation why it was delayed by six hours. Given the harsh realities of our times we find it virtually impossible that two women folk went to a police station at that hour of the night unaccompanied by any male. These become crucial in the background of the pre-existing enmity between the parties leading to earlier police cases between them also. The possibility of false implication therefore cannot be ruled out completely in the facts of the case. 17. Hence, the criminal appeal is allowed. The impugned judgment of conviction dated 03.02.2015 passed by the learned Additional District & Sessions Judge, (Woman Atrocities & Dowry Cases), Sriganganagar in Session Case No.1/2013 is hereby set aside. The accused-appellant is acquitted of the offence under Section 302 IPC. The appellant is behind the bars. He may be released forthwith if not required in any other case. 18. Keeping in view, however, the provisions of Section 437-A Cr.P.C. the accused appellant is directed to forthwith furnish personal bond in the sum of Rs.40,000/- and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellant, on receipt of notice thereof, shall appear before Hon'ble Supreme Court.