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Subhash Chand vs State on 16 July, 2021

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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
gone to the police station alone with her sister-in-law

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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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