Gaje Singh vs State on 12 July, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR

D.B. Criminal Appeal No. 796 / 2012

Gaje Singh S/o Naval Singh, by caste Kumawat Rajput, age 37
years, resident of Samicha, Police Station Kelwara, District
Rajsamand

—-Appellant

Versus

State of Rajasthan

—-Respondent

Connected With

D.B. Criminal Appeal No. 882 / 2012

Gaje Singh S/o Naval Singh, by caste Kumawat Rajput, age 37
years, resident of Samicha, Police Station Kelwara, District
Rajsamand

—-Appellant

Versus

State of Rajasthan

—-Respondent

__

For Appellant(s) : Mr. SS Sisodiya

For Respondent(s) : Mr. CS Ojha, PP
__

HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS

HON’BLE MR. JUSTICE MANOJ KUMAR GARG

Judgment

Per Hon’ble Mr. Justice Manoj Kumar Garg
Date of judgment :: 12th July, 2017

D.B. Cr. Appeal No.796/2012 has been filed by the accused

appellant through his counsel and another cr. appeal being D.B.

Cr. Appeal No.882/2012 has been filed by the accused appellant
(2 of 13)
[CRLA-796/2012]

through jail.

Both the appeals are registered against the common

judgment dated 26.7.2012 passed by the learned Sessions Judge,

Rajsamand in Sessions Case No.58/2011 whereby the accused

appellant Gaje Singh was convicted for offence under Section 302

and 498A IPC and following sentence was passed against him,

which reads as under:

Under Section 302 IPC Imprisonment for life

Under Section 498A IPC Three years RI

As per facts of the case on 14.10.2010, PW–1 complainant

Devi Singh submitted a written report (Ex.P/1) upon that FIR

no.160/2010 was registered under Section 306 and 498A IPC on

14.10.2010 at Police Station Kelwara, District Rajsamand.

In the FIR, complainant alleged that marriage of his sister

late Smt. Kamla solemnized with the appellant Gaje Singh 10

years back and after two years of marriage, her in-laws and

husband started quarreling with her, but his sister did not say any

word to them but on 29.9.2010 her husband give beating and

take her in the field at solitary place and it was suspected that

accused appellant took his wife Kamla near well and pushed inside

the well. It is also suspected that it is a case of murder because

deceased was knowing swimming, therefore, the story of

committing suicide is totally false. Therefore, it is prayed that

action may be taken against her husband and in-laws for

committing offence of murder. It is also stated that they were

busy in cremation and final rites of the deceased, therefore, delay
(3 of 13)
[CRLA-796/2012]

is caused. Before submitting aforesaid complaint, a written

complaint was also submitted by one Surendra Singh on

2.10.2010 at Police Station Kelwara, District Rajsamand upon

which Marg No.9/2010 was registered under Section 174 Cr.P.C.

at 7.30 pm and investigation was commenced.

Upon complaint (Ex.P/1) formal FIR (Ex.P/16) was registered

and investigation was commenced by the SHO Police Station,

Kelwara. The appellant was arrested and after completing

investigation, charge-sheet was filed against the accused

appellant by the SHO Police Station Kelwara, District Rajsamand

under Section 498A and 306 IPC in the court of Munsif and Judicial

Magistrate, Kumbhalgarh from where case was committed for trial

in the court of Addl. Sessions Judge (FT), Rajsamand.

In the trial, the learned trial court after considering entire

evidence framed the charge against the accused appellant Gaje

Singh for the offence under Section 498A and 306 IPC vide order

dated 14.7.2011. After abolition of the court of Addl. District

Sessions Judge (FT), the case was again transferred to the court

of Sessions Judge, Rajsamand on 1.4.2011 where trial was

commenced.

As per record on 19.7.2012, at the time of final hearing of

the case the learned trial court amended the charge and charge

under Section 302 IPC was also added but the accused appellant

denied the allegations for the charge of Section 302 IPC.

In the trial after framing charge, statements of 22

prosecution witnesses were recorded in support of prosecution
(4 of 13)
[CRLA-796/2012]

case and 17 documents were exhibited from prosecution side,

thereafter, the statements of the accused appellant under Section

313 Cr.P.C. were recorded by the learned trial court but accused

appellant denied all the allegations made by the prosecution

witnesses and produced two witnesses in defence namely DW-1

Naval Singh and DW-2 Sardar Singh, so also, three documents

were exhibited from the defence side.

The learned trial court finally heard arguments and decided

the case vide judgment dated 26.7.2012 in Sessions Case

No.58/2011 whereby convicted the accused appellant for offence

under Section 302 and 498A IPC and acquitted the appellant from

charge under Section 306 IPC.

At the threshold learned counsel for the accused appellant

submits that whole trial was conducted by the learned trial court

after framing charge under Section 306 and 498A IPC but after

recording evidence of both the sides at the final stage, the learned

trial court amended the charge vide order dated 19.7.2012 and

added the charge under Section 302 IPC against the accused

appellant and, thereafter, convicted the accused appellant for

offence under Section 302 IPC, but the assessment of evidence by

the trial court for offence under Section 302 IPC is totally

erroneous because as per entire evidence of prosecution more

specifically statement of PW–17 Dr. Sudhir Sharma it is obvious

that allegation of prosecution for inflicting injuries has not been

corroborated because as per statement of the doctor only two

injuries were found upon the body of the deceased and those
(5 of 13)
[CRLA-796/2012]

injuries were caused due to hit of the wall of well and cause of

death of was asphyxia due to drowning, therefore, the allegation

of prosecution for committing offence under Section 302 IPC is not

made out.

Learned counsel for the appellant submits that there is no

eye witness of the case and entire case is based upon

circumstantial evidence, further submits that even if the

statement of all the prosecution witnesses is accepted then also

offence cannot travel beyond offence under Section 498A and 306

IPC, the learned trial court conducted whole trial while framing

charge under Section 306 and 498A IPC, but before hearing final

arguments, amended the charge and added charge under Section

302 IPC and held accused appellant guilty for offence under

Section 302 IPC. According to the learned counsel for the

appellant the finding of guilt recorded by the learned trial court

for offence under Section 302 IPC is based upon presumption

because there is no eye witness of the case, more so, the learned

trial court gave finding on the basis of his own presumption

without any corroboration from the prosecution evidence. It is

also argued that in-laws participated in the cremation and incident

was reported by Sohan Singh S/o Bhanwar Singh (PW–7) upon

that proceedings under Section 174 Cr.P.C. was initiated but later

on upon complaint made by the brother of the deceased Devi

Singh (PW–1) FIR was registered after delay of 14 days.

Learned counsel for the appellant submits that there is no

eye witness in the case, but witness PW–1 Devi Singh brother of
(6 of 13)
[CRLA-796/2012]

the deceased, PW–2 Arjun Singh, brother in law of the deceased,

PW–8 Lal Singh, brother-in-law and husband, PW–9 Khet Singh,

uncle of Kamla, PW–10 Hemant Singh, uncle of deceased

Kamla, PW–11 Kalu Singh, cousin brother of the deceased and

PW–13 Himmat Singh, brother-in-law of the deceased Kamla

(sister’s son), PW–14 Pushpa Kanwar, sister-in-law and PW–15

Heera Kanwar, sister-in-law of the deceased made allegation for

demand of dowry without any medical evidence and admittedly

they are not eye witness nor upon their statements, offence under

Section 302 IPC is made out. It is also submitted that the post

mortem report as well as the statement of doctor loudly speaks

that it is not a case for commission of offence under Section 302

IPC but the learned trial court gave erroneous finding only on

presumption that prosecution has proved the case beyond

reasonable doubt for commission of offence under Section 302

IPC. Therefore, it is a case in which appellant has been held guilty

for offence under Section 302 IPC without any trustworthy or

reliable evidence. As per arguments, even if entire prosecution

evidence is accepted then also offence cannot travel beyond

offence under Section 498A and 306 IPC. Therefore, finding of

guilt recorded by the learned trial court for offence under Section

302 IPC merely on the basis of presumption deserves to be

quashed.

Per contra, learned Public Prosecutor vehemently opposed

the prayer and submits that though the marriage of deceased and

appellant was solemnized 10 years back from the date of incident
(7 of 13)
[CRLA-796/2012]

and during the said period some time quarrel took place in

between the appellant and his wife and as per the evidence on

record the appellant gave threatening to the deceased for

committing her murder, therefore, under a conspiracy he has

killed the deceased by pushing her in the well situated in their

agricultural field, therefore, the learned trial court gave finding

that it is a case of murder punishable under Section 302 IPC

because the accused appellant with planning committed murder of

the deceased by pushing her in the well and before incident gave

severe beating to the deceased. The circumstantial evidence

loudly speaks that it is a case of murder, therefore, the learned

trial court has rightly arrived at with the finding of guilt under

Section 302 IPC, according to learned Public Prosecutor the delay

in filing the FIR is not fatal because soon after the occurrence

proceedings under Section 174 Cr.P.C. was initiated and,

thereafter, the complaint was filed upon which after registration of

the FIR regular investigation took place and charge sheet was filed

against accused appellant for offence under Section 498A and 306

IPC, but later on, on the basis of the evidence on record, the

learned trial court added the charge for offence under Section 302

IPC and finally convicted the accused appellant for offence under

Section 302 IPC, for the reasons that there is ample circumstantial

evidence to prove the case against the accused appellant for

offence under Section 302 IPC.

According to the learned Public Prosecutor there is no error

in the judgment, therefore, this appeal may kinldy be dismissed.

(8 of 13)
[CRLA-796/2012]

After hearing learned counsel for the parties, we have

perused the entire evidence and, considered the arguments

advanced by the learned counsel for the appellant. There is no

dispute that FIR was registered after delay of 10 days from the

date of occurrence and soon after the occurrence, no FIR was filed

by the parents and brother of the deceased.

Upon assessment of the entire evidence, it is revealed that

the relationship of deceased and the appellant was not cordial due

to said reason on 21.6.2004 an agreement was signed by the

parties that in future the appellant husband will not make any

quarrel nor he will give any beating to her and under the said

agreement (Ex.P/7), Deceased was allowed to go with the

appellant, but upon consideration of the entire evidence and

statement of prosecution witnesses that behavior of the accused

appellant remained same and due to said reason deceased was

not happy in her in-laws house.

Now question arose whether the deceased was murdered or

it is a case of suicide due to drowning. Upon perusal of statement

of PW–1 Devi Singh and all other witnesses it is obvious that

there is no eye witness in this case. To ascertain the correctness

of the finding, we have perused the statement of PW–17 Dr.

Sudhir Sharma. The Dr. Sudhir Sharma in categorically stated that

as per post mortem the cause of death was asphyxia due to

drowning. The statement of Dr. Sudhir Sharma are as under:

” fnukad 02-10-2010 dks eS lkeq-Lok- dsUnz dsyokyk ewa-

fpfdRlkf/kdkjh ds in ij dk;Zjr FkkA bl jkst Fkkukf/kdkjh
(9 of 13)
[CRLA-796/2012]

dsyokMk ds fuosnu ij cksMZ ds }kjk Jhefr deyk ckbZ dk iksLVekVZe

fjiksVZ rS;kj dh FkkA esjs vykok cksMZ es Mk-

ijh{k.k djus ij fuEu pksVsa ik;h x;h%

1- lwtu 6-5X3-8 lseh- nk;sa da/ks ijA

2- lwtu 7x8x4-2 ls-eh- ihB ij cka;h rjQA

Nksuksa pksVsa e`R;q ls iwoZ Fkh rFkk lk/kkj.k izd`fr dh gksdj dqUn

gfFk;kj ls dkfjr gksuk ik;h x;hA vUr; ijh{.k esa nksuksa QsQM+s Qys

gq, Fks rFkk gok ,oa [kwu fefJr Nkx dkVus ij ckgj vk jgk FkkA

mlds vU; vo;o tkap esa LoLFk ik;s x;sA

gekjh jk; esa e`R;q dk dkj.k ,DQhfl;e Fkk tks fd e`R;q ls iwoZ

Mwcus ls gqvk FkkA iksLVekVZe fjiksVZ iz ih-8 gS ftl ij , ls ch esjs

gLrk- gS ,oa lh ls Mh MkW- – gS ,oa bZ ls ,Q

esfMdy cksMZ dh jk; gSA iksLVekVZe fjiksVZ esjh dyeh gSA

ftjg }kjk vf/koDrk vfHk;qDr Jh Mh ,l jkBSkM+

;g lgh gS fd mDr nksuksa pkvSa tks da/ks vkSj ihB ij gS og

dq, ls fxjus ls nhokj ls Vdjkus ls vk ldrh gSA”

Upon perusal of the statement of Dr. Sudhir Sharma there is

no dispute that no such injury was caused by the accused

appellant to the deceased to commit murder. Similarly, there is

no evidence on record to prove the fact that deceased was pushed

by the accused appellant in the well so as to commit her murder.

PW–18 Madan Singh who was SHO on 2.10.2010

categorically stated before the court that at the time of reporting

the case proceedings under Section 174 Cr.P.C. was initiated. At
(10 of 13)
[CRLA-796/2012]

that time, no suspicion was raised by the parties. In the cross-

examination, the PW–18 Madan Lal gave following statement:

“;g lgh gS fd lksgu flag dh exZ fjiksVZ izMh 3 ntZ djk;h rc ml le;

mlus fdlh Hkh izdkj dk dksbZ ‘kd ‘kqck tkfgj ugha fd;k FkkA ftlesa e`R;q

dk dkj.k vdky vpkud ekSr ekuk x;k FkkA ;g lgh gS fd bl izdj.k

esa eqdnek ?kVuk ds 12 fnu ckn ntZ gqvk FkkA “

The other witness PW–21 Bhanwar Singh who was working

as ASI stated before the court that Marg No.19/2010 was

registered under Section 174 Cr.P.C. and investigated by him

during investigation at that time, Gordhan Singh, Devi Singh, Lal

Singh, Jawan Singh and Hamer Singh all were present when

Panchnama of the dead body was prepared. It is also stated in

the cross-examination by him that when incident was reported in

the Police Station no suspicion was raised by the family members

of the deceased. In the cross-examination, the PW–21 Bhanwar

Singh gave following statement, which reads as under:

“;g lgh gS fd ftl le; exZ ds fy, fjiksVZ Fkkus esa is’k gqbZ Fkh ml le;

deyk ds ekSj ds lac/a k esa mlds ifjokj okyksa us dksbZ ‘kd ‘kqck tkfgj ugha

fd;kA ;g lgh gS fd exZ fjiksVZ rS;kj djh Fkh rc mldk nksuksa HkkbZ ekStwn

FkkA ;g lgh gS fd mUgksusa e`rdk ds ifr ds }kjk ngst dh vuqfpr ekax ds

fy,s mls izrkfMr djus dh ckr ugha crk;hA”

It is also admitted fact of the case that police filed

charge-sheet under Section 306 and 498A IPC and whole trial was

conducted after framing charge under Section 306 and 498A IPC,

but after recording evidence at final stage, on the date of final
(11 of 13)
[CRLA-796/2012]

hearing on 19.7.2012 the learned trial court amended the charge

and added offence under Section 302 IPC and reserved the

judgment for pronouncement and finally pronounced the judgment

on 26.7.2012.

Upon perusal of entire evidence it is revealed that after

investigation, charge-sheet was filed under Section 306 and 498A

because no evidence came on record to prove the allegation of

murder or pushing the deceased in the well by the accused

appellant. None of the family members raised any suspicion when

matter was investigated by the police under Section 174 Cr.P.C.

but later on complaint was filed by the brother of the deceased

PW–1 Devi Singh, upon which investigation was conducted and

finally the charge-sheet was filed under Section 306 and 498A

IPC.

After considering finding and evidence on record, we are of

the opinion that conviction under Section 302 IPC is based upon

presumption of the trial court because there is no direct evidence

on record to prove the fact that accused appellant pushed the

deceased in the well and committed murder. More so, as per the

statement of the doctor there was no apparent injury which is said

to be inflicted by any weapon. All the symptoms recorded in the

post mortem by the doctor proved that it is a case of drowning.

We have perused the documentary evidence, so also,

considered the fact of quarrel took place in between the accused

appellant and deceased after marriage in the year 2004 and

considering the fact that agreement was executed on 21.7.2004 in
(12 of 13)
[CRLA-796/2012]

the presence of number of persons at that time the accused

appellant gave assurance to the in-laws that he will not make any

quarrel with the deceased after consuming liquor. Therefore, it is

clear from the evidence that the attitude of the accused appellant

with the deceased was not good and he was quarreling with the

deceased, therefore, deceased committed suicide which resulted

into death.

In view of the above discussion, we are of the opinion that

the finding of the learned trial court to convict the accused

appellant for offence under Section 302 IPC instead of Section 306

IPC is not sustainable in law because entire evidence loudly

speaks that it is a case in which prosecution has proved the

allegation of cruelty by the accused appellant with the deceased

and as per opinion of the doctor she died due to drowning and

there is no evidence on record for pushing the deceased in the

well by the accused appellant, therefore, we have no hesitation

to quash the finding of the learned trial court for offence under

Section 302 IPC, but we are of the opinion that prosecution has

proved its case for offence under Section 306 IPC.

In view of the above, cr. appeal No.796/2012 is partly

allowed. The conviction and sentence of the accused appellant for

offence under Section 302 IPC passed by the learned Sessions

Judge, Rajsamand vide judgment dated 26.7.2012 in Sessions

Case No.58/2011 is hereby quashed and set aside and is hereby

altered to offence under Section 306 IPC and the appellant is

hereby punished for sentence of ten years imprisonment with fine
(13 of 13)
[CRLA-796/2012]

of Rs.5,000/- and in default of payment of fine to further undergo

three months RI. The finding for conviction and sentence for the

offence under Section 498A IPC as passed by the learned trial

court is hereby maintained.

Consequently, the D.B. Cr. Appeal No.882/2012 filed by the

appellant through jail is also disposed of in terms of the judgment

passed in D.B. Cr. Appeal No.796/2012 filed against same

judgment passed by the learned Sessions Judge, Rajsamand in

Sessions Case No.58/2011.

(MANOJ KUMAR GARG)J. (GOPAL KRISHAN VYAS)J.

cpgoyal/ps

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