(Dipak Misra and Prafulla C. Pant, JJ.)
Chandra Kaur ____________ Appellant
v.
State of Rajasthan _________ Respondent
Criminal Appeal No. 438 of 2007, decided on September 8, 2015
The Judgement of the court was delivered by
Prafulla C. Pant, J.:—
1. This appeal is directed against judgment and order dated 5.5.1995, passed by the High Court of Rajasthan at Jodhpur, whereby said Court has dismissed D.B. Criminal Appeal No. 82 of 1989, and affirmed conviction and sentence recorded by the Additional Sessions Judge No. 2, Sri Ganganagar, in Sessions Case No. 1 of 1987 (25 of 1986) against the appellant under Sections 459, 307 read with Section 34 and Section 302 read with Section 34 of Indian Penal Code (IPC).
2. We have heard learned counsel for the parties and perused the papers on record.
3. Prosecution story, in brief, is that appellant Chandra Kaur and her husband Gurdeep Singh had enmity with Bhupendra Singh (deceased), over the possession of plot No. 144 in Sector 2, Mandi Sardul Shahar. On 9.3.1984 at about 3.00 p.m., PW-1 Jasmail Kaur (mother of the deceased) came to above mentioned plot. She saw her son Bhupendra Singh running out of his house with bleeding injuries, and accused Gurdeep Singh (one of the convicts) armed with sword and his wife i.e. appellant Chandra Kaur, armed with Gandasi (heavy sharp edged weapon) were chasing him. It is stated that Gurdeep Singh inflicted blows with sword on the head of Bhupendra Singh near house of Sheopat Kumar, whereafter he (Bhupendra Singh) fell down. It is alleged by the prosecution that Chandra Kaur exhorted Gurdeep Singh to kill Bhupendra Singh. It is further alleged that after the incident, the two accused ran away. When PW-1 Jasmail Kaur went inside the house of the deceased, she saw PW-2 Mangat Ram also lying injured and bleeding. The third witness is stated to be PW-3 Jagsir Singh, brother-in-law of the deceased. Oral report of the incident was got lodged at Police Station Sardul Shahar at 3.30 p.m. on the same day, on the basis of which FIR (Ex. P-1) was registered.
4. PW-10 Prithvi Singh, Station House Officer of the police station, took up investigation and inspected the spot, prepared site plan, and got sent the dead body of Bhupendra Singh, after preparing inquest report, for post mortem examination to Primary Health Centre, Sardul Shahar. PW-4 Dr. Kailash Chandra recorded the injuries on the person of Mangat Ram (PW-2) at about 3.40 p.m. on the very day. The same doctor (PW-4) at 4.40 p.m. (on the same day) conducted autopsy on the dead body of the deceased Bhupendra Singh. During investigation, the weapons used in the crime were recovered by the Investigating Officer. Also, blood stained clothes of accused Gurdeep Singh were seized on 13.3.1984. On completion of investigation charge sheet was filed against six accused, namely, Gurdeep Singh, Chandra Kaur (appellant), Dhanna Singh, Udai Singh, Talla Singh and Shamsher Singh.
5. The Chief Judicial Magistrate (No. 1) Sri Ganganagar, after providing necessary copies to the accused, committed the cases to the Court of Sessions. The case against accused Gurdeep Singh and appellant Chandra Kaur, was registered as Sessions Case No. 25 of 1986, and one against rest of the accused Dhanna Singh, Udai Singh, Talla Singh and Shamsher Singh, was registered as Sessions Case No. 26 of 1986. Both the cases were consolidated and trial was held together. After hearing the parties, the trial court framed the charge against all the six accused, who pleaded not guilty and claimed to be tried. On this, prosecution got examined PW-1 Jasmail Kaur, PW-2 Mangat Ram, PW-3 Jagsir Singh, PW-4 Dr. Kailash Chandra, PW-5 Dalip @ Media, PW-6 Avtar Singh, PW-7 Dr. Rajendra Gupta, PW-8 Dr. K.N. Markandey, PW-9 Ram Lal and PW-10 Prithvi Singh, Station House Officer.
6. The oral and documentary evidence was put to the accused under Section 313 of the Code of Criminal Procedure, 1973, in reply to which accused pleaded that the evidence adduced against them was false. They, further, pleaded that they have been impleaded due to enmity.
7. The trial court, after hearing the parties, found accused Gurdeep Singh guilty of charge of offences punishable under Sections 459, 307 and 302 IPC. Appellant Chandra Kaur was convicted under Sections 459 and 307 read with Section 34 IPC and Section 302 read with Section 34 IPC. Each one of them was sentenced to rigorous imprisonment for a period of five years and to pay a fine of Rs. 200/- for offence punishable under Section 459 IPC, i.e. for causing grievous hurt while committing house trespass; rigorous imprisonment for a period of six years and to pay a fine of Rs. 300/- under Section 307 IPC, i.e. in respect of attempt to commit murder of Mangat Ram; and imprisonment for life and to pay a fine of Rs. 200/-, i.e. for committing murder of Bhupendra Singh. We have already mentioned above that accused Gurdeep Singh has been convicted and sentenced for his individual act while appellant Chandra Kaur has been convicted with the aid of Section 34 IPC. Rest of the accused, namely, Udai Singh, Talla Singh, Dhanna Singh and Shamsher Singh were convicted under Section 302 read with Section 109 IPC by the trial court, and each one of them was sentenced to life imprisonment and to pay a fine of Rs. 200/-, and in default of payment of fine, the defaulter convicts were directed to undergo further rigorous imprisonment for two years.
8. All the convicts challenged the order of conviction and sentence, recorded against them, before the High Court, and the same, were disposed of by common order. The appeal of Dhanna Singh stood abated due to his death. The appeals filed by Udai Singh, Talla Singh and Shamsher Singh were allowed, and they were acquitted of the charge. Rest of the appeals, i.e., that of Gurdeep Singh and Chandra Kaur are dismissed. Gurdeep Singh has not challenged his conviction and sentence before us, and said to have underwent the sentence.
9. In the present case, the only appellant before us is Chandra Kaur, who has been convicted with the aid of Section 34 IPC. It is argued before us that there is no evidence that the appellant had common intention with her husband Gurdeep Singh in commission of the crime. Our attention is drawn to the evidence of PW-1 Jasmail Kaur and PW-2 Mangat Ram. Learned counsel for the State of Rajasthan pointed out that the witnesses have assigned only role of exhortation to the appellant.
10. On going through the evidence on record, we find that there was admitted enmity between the family of the deceased and that of accused Gurdeep Singh. In such a situation, where the eye witnesses have not narrated any specific role of appellant Chandra Kaur, rather the specific role of assaulting with the sword has been given to Gurdeep Singh, it cannot be ruled out that the name of the appellant has been added due to enmity with the main accused. It is relevant to mention here that accused Dhanna Singh was also said to have exhorted accused Gurdeep Singh to commit crime. Not only this, accused Udai Singh said to have kept his hand on the shoulder of Gurdeep Singh to show his participation with the assailants in commission of murder of Bhupendra Singh. However, the High Court has not believed the evidence of prosecution witnesses as against Udai Singh. It is hard to believe that every one mentioned above was exhorting Gurdeep Singh, in the manner suggested by prosecution. High Court has already given benefit of reasonable doubt to accused Udai Singh. As such, since it is the duty of the court to separate chaff from the grain, on re-appreciating the evidence on record, we find that it cannot be said that charge as against appellant Chandra Kaur that she had common intention with her husband to commit the crime, is proved on record beyond reasonable doubt, and her false implication with her husband, due to enmity with family of deceased cannot be ruled out.
11. For the reasons, as discussed above, we are inclined to allow this appeal. The same is accordingly allowed. The appellant is acquitted from the charge of offence punishable under Sections 459, 307 read with Section 34 IPC and Section 302 read with Section 34 IPC. She is on bail. She need not surrender.
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