Rajasthan High Court - Jodhpur
Kala Singh @ Naresh And Anr vs State on 23 November, 2022
Bench: Sandeep Mehta, Kuldeep Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 327/2014
1. Kala Singh @ Naresh S/o Kailash Singh, by caste Ramdasia,
Age 23 years, R/o Chunawad (Sri Ganganagar).
2. Meena Devi W/o Tarsem Singh, by caste Ramdasiya, aged 31
years, R/o Ward No.3, Chunawad (Sri Ganganagar).
----Appellants
Versus
The State of Rajasthan.
----Respondent
Connected With
D.B. Criminal Appeal No. 28/2014
1. Ramesh Kukar @ Mahesh S/o Surja Ram, by caste Nayak,
aged 22 years, R/o Chunawad (Sri Ganganagar).
2. Vikas Kumar @ Om Prakash S/o Kishan Lal, by caste Nayak,
Age 20 years, R/o Chunawad (Sri Ganganagar).
----Appellants
Versus
The State of Rajasthan.
----Respondent
For Appellant(s) : Mr. Navneet Poonia.
For Respondent(s) : Mr. B.R. Bishnoi, AGC.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE KULDEEP MATHUR
JUDGMENT
DATE OF JUDGMENT: 23/11/2022
Reportable
(Downloaded on 30/11/2022 at 08:55:30 PM)
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BY THE COURT (PER HON'BLE MEHTA, J.)
1. These two appeals have been filed for assailing the Judgment
dated 13.12.2013 passed by the learned Additional Sessions
Judge (Special Court of Women Atrocities and Dowry Cases), Sri
Ganganagar in Sessions Case No.36/2013 whereby, the appellants
herein were convicted and sentenced as below:
Kala Singh @ Naresh
Offences Sentences Fine Fine Default
sentences
Section 458 IPC 10 Years' R.I. Rs.5,000/- 6 Months'
further
imprisonment
Section 459 IPC Life Imprisonment Rs.5,000/- 6 Months'
further
imprisonment
Section 394 IPC Life Imprisonment Rs.10,000/- 6 Months'
further
imprisonment
Section 397 IPC 10 Years' R.I. Rs.10,000/- 6 Months'
further
imprisonment
Section 323 IPC 1 Year's Rs.2,000/- 3 months'
Imprisonment further
imprisonment
Section 325/34 3 Years' Rs.2,000/- 6 Months'
IPC Imprisonment imprisonment
All the substantive sentences were ordered to run concurrently.
Ramesh Kumar @ Mahesh
Offences Sentences Fine Fine Default
sentences
Section 458 IPC 10 Years' R.I. Rs.5,000/- 6 Months'
further
imprisonment
(3 of 15) [CRLA-327/2014]
Section 459 IPC Life Imprisonment Rs.5,000/- 6 Months'
further
imprisonment
Section 394 IPC Life Imprisonment Rs.10,000/- 6 Months'
further
imprisonment
Section 397 IPC 10 Years' R.I. Rs.10,000/- 6 Months'
further
imprisonment
Section 323/34 1 Year's Rs.2,000/- 3 months'
IPC Imprisonment further
imprisonment
Section 325/34 3 Years' Rs.2,000/- 6 Months'
IPC Imprisonment imprisonment
All the substantive sentences were ordered to run concurrently.
Vikas Kumar @ Om Prakash
Offences Sentences Fine Fine Default
sentences
Section 458 IPC 10 Years' R.I. Rs.5,000/- 6 Months'
further
imprisonment
Section 459 IPC Life Imprisonment Rs.5,000/- 6 Months'
further
imprisonment
Section 394 IPC Life Imprisonment Rs.10,000/- 6 Months'
further
imprisonment
Section 397 IPC 10 Years' R.I. Rs.10,000/- 6 Months'
further
imprisonment
Section 323 IPC 1 Year's Rs.2,000/- 3 months'
Imprisonment further
imprisonment
Section 325 IPC 3 Years' Rs.2,000/- 6 Months'
Imprisonment imprisonment
All the substantive sentences were ordered to run concurrently.
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Meena Devi
Offences Sentences Fine Fine Default
sentences
Section 458 IPC 10 Years' R.I. Rs.5,000/- 6 Months'
further
imprisonment
Section 459 IPC Life Imprisonment Rs.5,000/- 6 Months'
further
imprisonment
Section 394/34 Life Imprisonment Rs.10,000/- 6 Months'
IPC further
imprisonment
Section 397/34 10 Years' R.I. Rs.10,000/- 6 Months'
IPC further
imprisonment
Section 323/34 1 Year's Rs.2,000/- 3 months'
IPC Imprisonment further
imprisonment
Section 325/34 3 Years' Rs.2,000/- 6 Months'
Imprisonment imprisonment
All the substantive sentences were ordered to run concurrently.
2. Being aggrieved of their conviction and sentences, the
appellants have preferred these appeals under Section 374(2)
Cr.P.C.
3. Since both these appeals arise out of a common Judgment,
they have been heard and are being decided together.
4. Briefly stated, facts relevant and essential for disposal of the
appeals are noted hereinbelow.
Parcha Bayan of Smt. Laxmi Devi (hereinafter referred to as
'the victim') (Ex.P./1) was recorded by the SHO, Police Station
Chunawad, District Sri Ganganagar at Bed No.18 of Female
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Orthopedic Ward, Government Hospital, Sri Ganganagar on
05.03.2013 at 10.30 AM wherein, she alleged that her husband
and her son had expired. She was living all alone in her Kachcha
house constructed on her plot. She would be provided food by her
neighbours. On the previous evening, she had dinner and then
bolted the door of the room and went to sleep. At about 11-12 O'
Clock in the night, three boys of village Chunawad namely
Ramesh, Kala Singh and Vikas broke into her room. She woke up
on hearing the noise on which, Ramesh gagged her mouth, Vikas
sat on her feet and Kala Singh gave her fist and kick blows. Kala
Singh snatched her golden earrings weighing about 1 Tola due to
which, her earlobes got torn and started bleeding profusely. She
raised a hue and cry on which, Ramesh tried to throttle her. Vikas
stood up and broke her left leg by giving a stick blow. All three ran
away with her earrings. She raised a hue and cry on which, some
villagers came there and got her admitted to Chunawad Hospital
from where, she was referred to Ganganagar Government
Hospital.
5. On the basis of this Parcha Bayan (Ex.P/1), an FIR
No.29/2013 (Ex.P/16) came to be registered at the Police Station
Chunawad for the offences punishable under Sections 458, 394,
323 read with Section 34 IPC and investigation was commenced.
During the course of investigation, statements of some witnesses
were recorded who alleged that they had seen the appellant
Meena proceeding from the direction of the informant's house with
the accused Ramesh, Vikas and Kala Singh. All the four accused
were arrested. The accused Kala Singh @ Naresh allegedly gave a
disclosure statement (Ex.P/40) to the I.O. Shri Phoolchand
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Sharma (PW-15) under Section 27 of the Indian Evidence Act.
Acting in furtherance thereof, the I.O. proceeded to the house of
the accused Meena and got recovered a golden earring. The
second earring was got recovered in furtherance of the disclosure
statement made by the accused Ramesh Kumar (Ex.P/41). Smt.
Laxmi Devi was got medically examined for her injuries and the
Medico-Legal Report (Ex.P/21) was prepared. Upon conclusion of
investigation, charge-sheet came to be filed against the accused
appellants for the offences under Sections 458, 459, 394 in the
alternative 394/34, 397 in the alternative 397/34, 323 in the
alternative 323/34 and 325 in the alternative 325/34 of the IPC.
As the offences under Sections 397 and 459 IPC were
Sessions triable, the case was committed and then transferred to
the court of Additional Sessions Judge (Special Judge of Women
Atrocities & Dowry Cases), Sri Ganganagar for trial where charges
were framed against the accused appellants Ramesh, Vikas and
Kala Singh @ Naresh for the offences under Sections 458, 459,
394, 397, 323/34 and 325/34 IPC and against the accused
appellant Meena for the offences under Sections 458, 459,
394/34, 397/34, 323/34 and 325/34 IPC. They pleaded not guilty
and claimed trial. The prosecution examined as many as 15
witnesses and exhibited 52 documents to prove its case. The
accused were questioned under Section 313 Cr.P.C. and upon
being confronted with the prosecution allegations, they denied the
same, claimed to be innocent but did not lead any evidence in
defence.
After hearing the arguments advanced by the Public
Prosecutor and the defence counsel and, appreciating the
evidence available on record, the learned trial court proceeded to
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convict and sentence the appellants as above by the Judgment
dated 13.12.2013 which is impugned in these two appeals.
6. Learned counsel Shri Navneet Poonia representing the
appellants Ramesh, Vikas and Kala Singh @ Naresh, vehemently
and fervently contended that the prosecution has failed to prove
its case as against the appellants by reliable evidence. The star
prosecution witness, the victim Laxmi Devi was an old lady aged
about more than 85 years. She stated in her examination-in-chief
that she was unable to see in darkness. In cross-examination, she
admitted that she went to sleep after switching off the lights, etc.
Thus, as per Shri Poonia, there was no source of light at the crime
scene and hence, it would have been impossible for the victim to
have successfully identified the accused in the condition of pitch
darkness. His alternative submission was that the term of
imprisonment which is provided under Sections 394 and 459 IPC
is "imprisonment for life" or with "rigorous imprisonment for a
term which may extend to 10 years". As per Shri Poonia, the bare
language of these Sections would indicate that "imprisonment for
life" should be awarded by way of exception and not as a matter
of course. He submitted that the accused appellants Ramesh,
Vikas and Kala Singh @ Naresh have already undergone sentence
of more than 10 years with remission and thus, the sentence of
Life Imprisonment awarded to the accused appellants for the
offences punishable under Sections 394 and 459 IPC should be
reduced to the period already undergone by them.
Since, no one has appeared to argue the matter on behalf of
the accused Meena Devi, Shri Poonia assisted the Court qua the
said accused also. He submitted that there is no reference to the
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presence of any woman accused in the Parcha Bayan (Ex.P/1)
given by Smt. Laxmi. The witness Smt. Sunita (PW-3) alleged that
she and her husband were taking care of their cow when they saw
a woman and some men standing near the house of the victim.
The lady identified the accused appellant Meena as being the said
woman. Shri Poonia pointed out that the witness admitted in her
cross-examination that Laxmi Devi told her the name of the
assailants. She also admitted that in the police statement
(Ex.D/1), she did not disclose the name of Meena as being the
woman who was accompanying the male accused persons. Shri
Poonia also submitted that the witness Brijlal (PW-4) stated that
Laxmi Devi took the name of the four assailants including the
appellant Meena. However, this allegation of Brijlal is contradicted
by the statement of the victim Laxmi Devi (PW-1). The witness
Brijlal also admitted that he did not know Meena from before the
incident. Thus, naming of the accused Meena by this witness is of
no consequence whatsoever because he could not have identified
the woman whom he did not know from before. He also pointed
out that the witness Daulat Ram (W-5) did not name the appellant
Meena in his evidence. Shri Poonia thus urged that as against the
accused Meena, there is no evidence whatsoever to connect her
with the alleged crime. He further submitted that though the I.O.
alleged that the one piece from the pair of earrings of the victim
was recovered from the house of the accused Meena in
furtherance of the disclosure statement of the accused Kala Singh
@ Naresh (Ex.P/40) but, no document of recovery proceedings
bears the signature of Meena and thus, no inference can be drawn
against her in relation to this recovery. He thus submitted that
finding recorded in the impugned Judgment whereby, the accused
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Meena was convicted for the above offences does not stand to
scrutiny and thus, the accused appellant Meena is entitled to be
acquitted.
7. Learned Public Prosecutor, on the other hand, vehemently
and fervently opposed the submissions advanced by the
appellants' counsel. He contended that the male accused
appellants, committed the heinous offence of house breaking by
night and brutally assaulted the old lady aged 85 years and
robbed her gold earrings by breaking her earlobes and thus, the
trial court was perfectly justified in awarding the sentence of Life
Imprisonment to these accused for the offences punishable under
Sections 394 and 459 IPC. However, qua the accused Meena,
learned Public Prosecutor candidly conceded that the evidence as
against this accused is not clinching and the findings of guilt
recorded against her by the trial court are more or less
conjectural.
8. We have given our thoughtful consideration to the
submissions advanced at bar and, have gone through the
impugned Judgment and the record.
9. The case of prosecution as against the male accused
assailants namely Ramesh, Vikas and Kala Singh @ Naresh is
based on the direct evidence of the victim Smt. Laxmi Devi (PW-
1). We have carefully perused the Parcha Bayan (Ex.P/1) and the
sworn statement of Laxmi Devi (PW-1) and find that the lady gave
clinching evidence on the aspect that the three accused
appellants, broke into her house in the dead of the night, indulged
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in violence with her and snatched away her gold earrings. In the
process, the earlobes of the lady were torn and her left leg was
fractured. Nothing significant is revealed from the cross-
examination conducted from the lady which could create a doubt
on the aspect of identification of the accused by the witness at the
time of the incident and during her sworn testimony. Thus, the
evidence of Smt. Laxmi Devi (PW-1) is convincing to the extent,
she levelled allegations of house breaking by night and robbery
associated with violence against the accused appellants Ramesh,
Vikas and Kala Singh @ Naresh. However, evidence of the
witnesses Sunita (PW-3), Brijlal (PW-4) and Daulat Ram (PW-5),
who alleged that they saw these male assailants standing besides
the house of Laxmi Devi and thereafter going away alongwith the
accused Meena Devi, is not convincing. There was no rhyme or
reason as to why, these witnesses would be loitering around in the
odd hours of the night. Hence, they clearly appear to be made-up
chance witnesses.
We are of the view that the I.O. seems to have
involved/created these witnesses to somehow or the other
implicate the accused Meena because, the victim herself did not
take the name of any female as having participated in the
incident. That is why, Sunita (PW-3), Brijlal (PW-4) and Daulat
Ram (PW-5) were created as chance witness and in their evidence,
the theory of a woman having participated in the incident was
added. Hence, the evidence of these witnesses is not convincing.
The earrings looted from the person of the victim were
recovered by the I.O. in furtherance of the disclosure statement
made by the accused Kala Singh @ Naresh (Ex.P/40) and Ramesh
(Ex.P/41). Though the I.O. alleged that one of the earrings was
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recovered from the house of the accused Meena but, from the
entire set of evidence available on record, it becomes clear that
the I.O. made no effort whatsoever to collect satisfactory evidence
to show that the house in question was of Meena. It may be
emphasized that the recovery memo (Ex.P/6), the site inspection
plan (Ex.P/7) and site inspection memo (Ex.P/7A) pertaining to
recovery of this earring does not bear the signature of the accused
Meena. Hence, this recovery cannot be considered as an
incriminating material against this accused. No other evidence was
brought on record to connect the accused appellant Smt. Meena
with the incident.
10. Consequently, we are of the firm view that the conviction of
the accused appellant Meena as recorded by the trial court is not
based on sound appreciation of evidence and hence, the same is
liable to be quashed and set aside.
11. However, the findings of guilt as recorded by the trial court
against the accused appellants Ramesh, Kala Singh and Vikas are
based on thorough and appropriate appreciation of evidence
available on record. Thus, their conviction for the offences under
Sections 458, 459, 394, 397, 323 and 325/34 IPC is upheld.
12. Now coming to the aspect of sentence. The accused have
been awarded Life Imprisonment for the offences punishable
under Sections 394 and 459 IPC. Both offences stipulate the terms
of sentences in the words "shall be punished with "Imprisonment
for Life" or with 'rigorous imprisonment for a term which may
extend to ten years". The sentence of "Imprisonment for Life" was
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substituted/introduced in these Sections in place of the words
"transportation for life' w.e.f. 01.01.1956 by amending Section
53A IPC.
The sentence of "transportation for life", which was
incorporated in Sections 394 and 459 and many other similar
provisions, is a grim reminder of the dark colonial history of our
country. This punishment seems to have incorporated in various
sections of Penal Code by the British Rulers who found the
presence of the freedom fighters in the country to be undesirable.
Thus, sentence of "transportation for life" was awarded and the
freedom fighters were sent to suffer inhuman punishments and
incarceration in far away places like Port Blair, Burma, etc. After
gaining independence, the legislature felt the imminent need to do
away with this inhuman form of punishment whereupon, Section
53A was incorporated in the Indian Penal Code by way of an
amendment in the year 1956 whereby, it was provided that
reference to "transportation for life" in the Penal Code and any
other law or in any instrument or order was required to be
construed as a reference to "imprisonment for life".
With this exclusion of the sentence of "transportation for
life", an anomaly has been created in the corresponding penal
provisions inasmuch as, now, the sentences, which can be
imposed by the court for such offences where transportation for
life was earlier provided, would either be "imprisonment for life" or
"imprisonment for a term upto 10 years", as the case may be.
Meaning thereby, the court can either award sentence 'upto 10
years' but if it is desirable to award a graver sentence, there
would be no option but to award sentence of "imprisonment for
life" to the accused.
(13 of 15) [CRLA-327/2014]
We are thus of the view that the sentence of "imprisonment
for life" substituted for the sentence of "transportation for life" in
various sections of the Indian Penal Code or for that matter, other
penal provisions, is an agonizing reminder of the dark colonial
history. Hence, before taking recourse of awarding this extreme
sentence, the courts should be circumspect and the sentence of
life imprisonment should be awarded under these penal provisions
only if there are strong and compelling circumstances.
For imposing the sentence of life imprisonment in preference
to the imprisonment of a term upto 10 years, the court would be
required to record special reasons. Otherwise also, the reformative
theory of punishment demands that wherever, there are options of
awarding two sets of imprisonment, one harsher than the other, in
such a circumstance, if the court decides to impose the graver
sentence, it must record plausible reasons for doing so.
When we go through the impugned Judgment, we find that
before awarding sentence of life imprisonment to the accused, the
trial court did not advert to the mitigating and aggravating
circumstances and the age of the accused who were young boys
at the time of the incident and straight away, considering the
gravity and the nature of the crime, awarded the maximum
sentence of life imprisonment to the accused appellants.
13. In this background and, having regard to the discussion
made herein above, we find that it is not a fit case warranting
award of harsh penalty of life imprisonment to the accused in this
case. The accused Ramesh, Vikas and Kala Singh were young men
aged 20-22 years at the time of the incident and thus, we are of
(14 of 15) [CRLA-327/2014]
the opinion that the sentence awarded to the accused appellants
for the offences under Sections 394 and 459 IPC deserve to be
reduced to the period of 10 years rigorous imprisonment.
As a consequence, we set aside the sentence of life
imprisonment awarded to the accused (1) Ramesh, (2) Vikas and
(3) Kala Singh for the offences punishable under Sections 394 and
459 IPC and instead sentence them to 10 years R.I. and fine of
Rs.10,000/- each. In default of payment of fine, each accused will
serve additional imprisonment of 6 months. However, their
conviction and the sentences awarded for the remaining offences
are maintained. All the sentences shall run concurrently.
The appeals preferred by the accused Ramesh, Vikas and
Kala Singh are partly allowed in the above terms. The appeal filed
by the appellant Meena is allowed and her conviction as recorded
by the trial court for the offences punishable under Sections 458,
459, 394/34, 397/34, 323/34 and 325/34 IPC and the sentences
awarded to her by the impugned Judgment dated 13.12.2013 are
hereby quashed and set aside. She is on bail. Her bail bonds are
discharged.
14. However, keeping in view the provisions of Section 437-A
Cr.P.C., the appellant Meena is directed to furnish a 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 a Special
Leave Petition against the present judgment on receipt of notice
thereof, the appellant shall appear before the Supreme Court.
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15. Record be returned to the trial court forthwith.
16. A copy of this order be placed in each file.
(KULDEEP MATHUR),J (SANDEEP MEHTA),J
33-Tikam Daiya/-
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