REPORTABLE

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

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.  

2. Challenge  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 punishable under

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.

The  substantive  sentences  in  respect  of  the  offences  were

reduced to the period already undergone.  

3. The 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.  

4. Prosecution 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

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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.  

After  the  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

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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.

Thereafter, jewellery 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

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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

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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 imposed.

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.  

5. Learned 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

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High Court was clearly in error in altering the conviction from

Section 302 read with Section 34 IPC to Section 307 IPC.

6. There is no appearance on behalf of the respondents in

spite of service of notice.  

7. On 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:

“Learned  PP feebly  agrees  that  there  was no injury  on  the  person  of  the  deceased. Mechanical  injury  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.”

8. As 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

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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.  

9. The appeal is allowed.  

………………………….J.

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(Dr. ARIJIT PASAYAT)

………………..………..J. (P. SATHASIVAM)

New Delhi, July 10, 2008

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