State of Rajasthan Vs.
Gulab Singh & Ors.  INSC 1088 (10 July 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2008 (Arising
out of S.L.P. (Crl.) No.4118 of 2006) State of Rajasthan ...Appellant Versus
Gulab Singh and Ors. ...Respondents
Dr. ARIJIT PASAYAT,
in this appeal is to the order passed by a Division Bench of the Rajasthan High
Court, Jodhpur, altering the conviction of the respondent for offence
Section 302 read with
Section 34 of the Indian Penal Code, 1860 (in short the `IPC') to Section 307
IPC. However, the conviction under Sections 458 and 460 IPC were maintained.
sentences in respect of the offences were reduced to the period already
trial Court i.e. learned Sessions Judge (Fast Track), Rajsamand had convicted
respondents 1 to 4 for offences punishable under Section 302 read with Section
34 and Sections 460, 458 and 397 of IPC and various other sentences in respect
of the other offences.
version in a nutshell is as follows:
Sessions case in
question arose from the first information report (exhibit P-5) which was
presented by the complainant Shri Prakash Chand (PW-4) before the police
incharge of Arakshi Kendra, Rajsamand on 11.7.1999. It was stated therein that
on 11.7.1999 in the morning at around 6.30 a commotion was taking place outside
the house of Dali 2
Chand father of Naval
Ram. The complainant went to the house of Dali Chand and saw that Smt. Jyoti
wife of Dali Chand was lying dead there, whereas her hands and mouth/face were
tied with cloth. Inside the room the hands and legs of Dali Chand were also
found tied. Thereafter, Roop Singh untied his hands and legs. Goods were lying
scattered inside the room. The children of Dali Chand live in Bombay and Dali
Chand was having a shop of controlled commodities.
This incident was
stated to have been committed by some unknown persons.
presentation of the aforesaid complaint, case No.479/99 for offences punishable
under Sections 460/458 IPC was registered and investigation commenced.
In the course of the
investigation the investigating officer recorded the statement of the
complainant Prakash Chand.
The injured Dali
Chand was admitted in the hospital at Rajsamand and Udaipur for treatment. His
injury report exh.P-4 was received. His x-ray was also conducted. After 3
inspection of the
place of the incident, spot memo exh.P-14 was prepared. The panchayatnama memo
of the dead body of the deceased Jyotibai Exh.P-1 was prepared. The clothes
which had been used to tie the hands and the mouth of the deceased were having
blood on them and, therefore, they were seized as evidence vide exh. P-7. After
conducting the post mortem of the dead body of the deceased the report Exh.P-3
was taken on record. Her dead body was handed over to her heirs for cremation
vide Exh.P-2. From the place of the incident bloodstained stones and control
sample stones were seized in respect whereof exh.P-8 was prepared. Statements
of the witnesses were recorded. A list of stolen articles was prepared. Chance
prints were taken from the place of the incident. Accused Gulab Singh, Uday
Singh, Nathu Singh and Laxman Singh were arrested. Gold and silver articles
along with cash of Rs.24,400/- were recovered at their instance.
was recovered at the instance of accused Dhool Singh and Shambu Singh. In this
regard exhs. P-10 to Exh.P-13 were prepared. The place of the incident was
pointed out by the accused in respect whereof exhs. P-49 to 52 was 4
prepared. The accused
were identified by the witness-Dali Chand and thereafter the seized case
property in the case were also identified in respect whereof exh. P-67 to 72
were prepared. Bloodstained clothes and stones were sent for FSL examination to
Forensic Sciences Laboratory Udaipur. The place of the incident was
photographed. After necessary investigation sufficient evidence was found
against accused Gulab Singh, Uday Singh, Nathu Singh for offences punishable
under Sections 460, 458, 302 IPC and against accused Dhool Singh, Moti Singh,
Shambu Singh for offences under Sections 414, 411, 120B IPC. The station in
charge, Raj Nagar filed a charge sheet against the above named accused persons
before the Court of learned Chief Judicial Magistrate, Rajsamand. Case was
committed to the Court of Sessions.
In order to
substantiate the accusations the prosecution examined 16 witnesses. The doctor
who examined the deceased found 12 injuries on the body of the deceased.
Placing reliance on
the prosecution version in the light of the 5 evidence led the learned trial
Judge recorded the conviction and imposed sentence as afore-stated.
It is to be noted
that one Shambhu Singh was sentenced to one year's rigorous imprisonment and
fine of Rs.1,000/- for the offence punishable under Section 411 IPC was
In the appeal before
the High Court he was not a party. The High Court altered the conviction
primarily on the ground that there was no injury on the person of the deceased,
as allegedly accepted by learned Public Prosecutor.
counsel for the appellant-State submitted that the reasoning of the High Court
is utterly fallacious as there was no question of the learned Prosecutor feebly
agreeing that there was no injury on the person of the deceased. In fact, the
evidence of doctor to which reference has been made by the trial Court is clear
to the extent that there were 12 injuries on the body of the deceased. In the
post-mortem report also 12 injuries were indicated. It is, therefore, submitted
that the 6
High Court was
clearly in error in altering the conviction from Section 302 read with Section
34 IPC to Section 307 IPC.
is no appearance on behalf of the respondents in spite of service of notice.
a bare reading of the High Court's order it is clear that it is a classic case
of non-application of mind. The only conclusion indicated by the High Court to
alter the conviction reads as follows:
feebly agrees that there was no injury on the person of the deceased.
being absent it would be unjust if the arguments of the learned counsel for the
appellants is not given some weightage.
In this background
offence under Section 307 IPC would be clearly made out because in that process
there was an attempt by virtue of which one of the victims have died."
rightly submitted by learned counsel for the State that from the evidence of
the doctor to which reference has been made by the trial Court and the
post-mortem report, it is clear that there were 12 injuries noticed on the body
of the 7 deceased and each one of them was described to be ante- mortem. It is
not clear as to how the High Court observed that there was no injury on the
body of the deceased. Still more surprising is the observation that
"mechanical" injury being absent it would be unjust, if the argument
of the learned counsel for the accused is not given some weightage. It is not
understood as to what the High Court meant by the expression `mechanical injury'.
It is unfortunate that a Division Bench of the High Court has come to such
atrocious and fallacious conclusions. The appeal deserves to be allowed which
we direct. The judgment of the trial Court is restored and, therefore, the High
Court's order so far it relates to alteration of conviction from Section 302
read with Section 34 to Section 307 IPC stands set aside. The respondent shall
surrender to custody forthwith to serve the remainder of sentence.
appeal is allowed.
8 (Dr. ARIJIT PASAYAT)
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