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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 273/2015
Subhash Chand S/o Ram Pratap, Aged about 44 years, B/c
Swami, R/o 15 BL (A), Ratnewala, Police Station, Ramshinghpur,
District Sriganganagar. (Lodged in Central Jail, Sriganganagar)
—-Appellant
Versus
State of Rajasthan through PP
—-Respondent
For Appellant(s) : Mr. Ravi Bhansali, Sr. Advocate
assisted by Mr. Vipul Dharnia, Adv.
For Respondent(s) : Mr. RR Chhaparwal, PP
HON’BLE MR. JUSTICE SANDEEP MEHTA
HON’BLE MR. JUSTICE MANOJ KUMAR GARG
Judgment
Judgment Reserved on : 13/07/2021
Date of pronouncement: 16/07/2021
BY THE COURT : (PER HON’BLE GARG, J.)
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.
Brief facts of the case are that on 19.02.2012, a written
report was submitted by one Parmanand Swami at Police Station
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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.
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.
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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.
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.
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.
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.
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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. 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.
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
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discrepancies in the statement of eye witness, therefore the
appeal filed by the accused-appellant deserves to be dismissed.
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.
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 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.
Similarly, the police recovered some broken bangles from the
place of incident. With regard to the recovered broken bangles,
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the so-called eye-witness Rakesh Kumar (PW-7) stated that his
mother used to sell bangles and some bangles used to break.
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.
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.
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
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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.
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. 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
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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.
Hon’ble Apex Court in the case of Jagdish and Ors. vs. 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. 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
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(9 of 9) [CRLA-273/2015]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.
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.
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.
(MANOJ KUMAR GARG),J (SANDEEP MEHTA),J
2-Bjsh/MS/-
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