Rajasthan High Court - Jodhpur
Lalu Ram vs State on 22 September, 2016
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
[1]
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
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Criminal Appeal (CRLA) No.286 of 2008
Lalu Ram S/o Khuman Ji, by caste Gameti,
resident of Koyala, Police Station Charbhuja,
District Rajsamand (Raj)
VS
State of Rajasthan
DATE OF JUDGMENT :: 22nd Sept., 2016
PRESENT
HON'BLE MR. GOPAL KRISHAN VYAS,J.
HON'BLE MR. G.R. MOOLCHANDANI,J.
Mr. Vineet Jain, for the appellant.
Mr. CS Ojha, PP
JUDGMENT
BY THE COURT [PER HON'BLE G.K. VYAS, J.]:
In this cr. appeal filed under Section 374 (1) Cr.P.C. the accused appellant is challenging the judgment of conviction and sentence dated 12.12.2007 passed by the learned Addl. Sessions Judge (FT), Rajsamand, by which the accused appellant was [2] convicted for offence under Section 302 and 201 IPC and following sentence was passed for respective offences:
Under Section 302 IPC Life imprisonment with a fine of Rs.1,000/- and in default of payment of fine to further undergo three months additional simple imprisonment Under Section 201 IPC Three years rigorous imprisonment with a fine of Rs.500/- and in default of payment of fine to further undergo one month additional simple imprisonment.
Both the sentences were
ordered to run
concurrently.
As per facts of the case a verbal information (Ex.P/12) was lodged by the complainant PW--13 Chanda Ram, uncle of the deceased Devali at Police Station- Charbhuja, District- Rajsamand, on 14.7.2007 in which it was alleged that 13-14 years back his niece, Smt. Devali was married with the appellant , since then she was residing with Lalu. On 6.7.2007, when he was in his agricultural field, at that time, appellant along with one Bagga came at about 2.00 [3] pm and asked him to provide Bidi, the complainant asked that where you are going then they replied that we are going to village Umarvas.
In the evening at about 7.30 pm his brother Kela Ram came and informed that Bhagga Gameti came to my house and made an inquiry about my daughter Devali, but I said that she has not come here.
Bhagga Gameti informed that you may come to search Devali and go back. Upon receiving said information, the complainant and his brother Kela Ram sent Prakash, Mohan and Banna to search Devali. On the next date, the nephew of the complainant Banna came and informed that dead body of Devali is found in the forest. Upon receiving such information, the complainant and his brother and 5-10 other persons went at village Koyla to the house of Devali where dead body of Devali was lying, the family members of the accused Lalu were present in the house. As per the contention of the complainant they inspected the body of Devali and find that her stomach was completely cut down and parts of chest were also cut down and there [4] were number of injuries upon whole of the body including thigh.
As per complainant brother Nena raised objection that we have doubt upon cause of death of Devali, therefore do not go for cremation. Upon asking accused appellant Lalu said that Devali went yesterday morning for taking wood from forest where some wild animal killed here, therefore, he became disturbed, so also, took the dead body of Devali for cremation and cremated the same without postmortem. The complainant further stated verbally that upon inquiry from other sources it has come to our knowledge that Lalu Ram took Devali with him in the forest where he killed Devali and tried to destroy the evidence. It is also stated that one year back husband Lalu gave beating to Devali, therefore, for some time, she reside in parents' house for two months. Learned counsel for Later on, Lalu assured that he will not beat her in future, therefore, we have sent back Devali back to her in-laws house. The complainant raised suspicion that accused appellant might have killed Devali because Devali was not in position to give birth of child, [5] therefore, accused appellant was interested to get marry with other lady while solemnizing Nata marriage.
Upon aforesaid verbal information given by the complainant Chanda Ram FIR no.100/2007 was registered on 14.7.2007 at Police Station- Charbhuja, District Rajsamand. In the investigation made by the investigating officer the accused appellant was arrested vide Ex.P/20 in presence of two witnesses Badri Lal and Madhav Singh on 17.7.2007 and upon his information given on 18.07.2007 under Section 27 of the Evidence Act, weapon axe was recovered vide Ex.P/6 on 19.7.2007 in presence of two witnesses Gordhan and Heera Singh. As per recovery memo (Ex.P/6) human blood was found upon sharp side of axe, therefore, same was sealed and marked Article-F upon the sealed cover. The site plan (Ex.P/1) was prepared on 15.7.2007 in presence of Mohanlal, Devaram, Shepu Ram by the SHO. The place of occurrence was verified by the accused appellant vide Ex.P/9. In the investigation, statement of witness Bhagga were recorded under Section 161 Cr.P.C. before whom the accused appellant informed that search my wife in the [6] hilly area of forest of Koyala, so also, appellant Lalu said that Kuth and Kulhari are not lying in the house, therefore, she might have gone in the forest area.
Upon search, the body was found in the same area pointed out by the accused appellant. After completing the investigation, the investigating officer filed charge sheet on the basis of circumstantial evidence against the accused appellant in the court of Judicial Magistrate, First Class, Kumbalgarh under Section 302 and 201 IPC, the learned Magistrate committed the case for trial in the court of Sessions Judge, Rajsamand, but it was transferred to the court of Addl. Sessions Jude (FT), Rajsamand for trial.
In the trial charge under Section 302 and 201 IPC was framed but the accused appellant, Laluram, denied the charges framed against him and prayed for trial.
In the trial, statements of 19 prosecution witnesses were recorded. Thereafter, the statement of the accused appellant under Section 313 Cr.P.C. were recorded, but he denied all the allegations leveled by the prosecution witnesses against him and said that my [7] in-laws have implicated me in this false case, no offence is committed by me.
The learned trial court after hearing arguments of both the sides finally convicted the accused appellant for offence under Section 302 and 201 IPC vide judgment dated 12.12.2007 passed in Sessions Case No.38/2007 and passed the sentence mentioned above.
Learned counsel for the appellant vehemently argued that it is case in which the entire prosecution case is based upon circumstantial evidence. Admittedly, FIR was filed after delay of 7 days, so also, the body was cremated in the presence of in-laws relative and number of persons of village Koyala and other villagers, but none of them raised any objection at the time of cremation upon the allegation of murder. All the family members of deceased Devali including father, mother and other relatives were present but none of them raised any objection or suspicion with regard to cause of death of deceased Devali, but later on, after 7 days only on suspicion FIR was filed in which false allegations were leveled by the complainant (uncle of the deceased) against the accused appellant. [8]
Learned counsel for the appellant submits that there is no evidence on record to connect the accused appellant with the alleged death of Smt. Devali because there is no evidence of motive. Smt. Devali was married with the accused appellant before 14 years and they were living peacefully. There is no witness to the effect that accused appellant was having any grudge or maltreated the deceased. Therefore, it is obvious that learned trial court has erred in placing reliance upon the so call recover of axe at the instance of the accused appellant which is alleged to be sustained with human blood. According to the learned counsel for the appellant a grave error has been committed by the learned trial court to connect the accused appellant with the crime on the basis of recovery of axe because in the FSL report it is reported that no human blood was found upon the axe, therefore, the finding of the learned trial court to assume the presence of human blood on the basis of statement of witness of recovery have no force of law, more so, it is based upon wrong presumption drawn by the learned trial court. [9]
Learned counsel for the appellant further argued that the learned trial court has wrongly placed reliance upon the statement of PW--5 Bhagga to conclude that accused appellant made an extra judicial confession before him. The said witness Bhagga, remained present throughout the search of dead body and cremation but did not disclose the fact of confession and keep silence, therefore, this fact makes him a witness of dubious credential, hence, the version of extra judicial confession brought on record for first time after one month on 8.8.2007 while recording statement under Section 161 Cr.P.C. deserves to be rejected solely on the ground that for a period of one month PW--5 Bagga kept mum and did not disclose the fact of extra judicial confession before anybody.
Learned counsel for the appellant submits that in absence of any post mortem report and gross delay in filing FIR and upon the fact that cremation was made in front of all the family members including the accused appellant, the conviction of the accused appellant on the basis of subsequent concocted story, is not sustainable in law, therefore, the judgment impugned [10] may kindly be quashed. In support of his case, the learned counsel for the appellant relied upon the judgments of the Hon'ble Supreme Court in the case of Lekh Ram and Brij Lal Vs. State of Punjab reported in 1992 AIR SCW 1291 and in the case of Jaswant Gir Vs. State of Punjab reported in (2006) 1 SCC (Cri)
579. Per contra, learned Public Prosecutor submits that although the post mortem was not conducted and body was cremated without post mortem but for this act, the accused appellant is responsible because being husband it was his duty to inform the police and to get conduct the post mortem of the body. Similarly, when he made extra judicial confession before PW--5 Bhagga then it was confirmed during investigation that accused appellant has committed an offence of murder of his own wife. The prosecution led trustworthy circumstantial evidence so as to reach to the conclusion that the accused appellant has committed offence of murder of his own wife. The learned trial court after due application of mind and appreciating the entire [11] evidence held accused appellant guilty, therefore, no interference is called for in this case.
After hearing the learned counsel for the parties, we have perused the entire evidence of the case. Admittedly, the alleged incident of death occurred on 6.7.2007 and dead body of the deceased Devali was found in the hills of the forest near Village Koyla and whole body was destroyed by animals and after recovery of body all the family members including, father, mother and other relatives of deceased Smt. Devali, visited the house of the accused appellant and in their presence cremation took place.
It is also one of the important aspect of the matter that all the witnesses accepted before the court that Devali used to go in forest while taking axe with her for brining firewood for preparing food. On the day of occurrence also she went in the forest. For seven days no information was given by the complainant party to the police and admittedly, on 14.7.2007 uncle of the deceased Chanda Ram Gameti first of all appeared before the SHO Police Station Charbhuja on 14.7.2007 at 4.15 pm and gave verbal information on the basis of [12] suspicion. Upon that information, FIR under Section 302 and 201 IPC was registered by the SHO.
It is also not in dispute that marriage of accused appellant was solemnized with the deceased Devali 14 years back and in between this period no incident was reported to the police or any complaint was made to the parents, but in the FIR some incidents were reported by the uncle that too, was not supported by any other evidence. It is true that axe was recovered vide Ex.P/6 in the investigation in front of two witnesses Gordhan and Heera Singh and was sealed while giving mark 'F' but same was sent to the FSL for examination and FSL report (Ex.P/26) was received and placed before the court in which it is reported that no blood was detected upon the axe which is alleged to be recovered upon information given by the accused appellant. Therefore, it cannot be said that prosecution has proved its case on the basis of circumstantial evidence of recovery of axe. There is no explanation on record with regard to delay in filing FIR after seven days, that too, after participating in the cremation proceedings by parents and relatives. For the so called [13] allegation of extra judicial confession which is said to be made before the witness PW.5 Bhagga, we have examined the entire evidence. Admittedly, PW.5 Bhagga was present not only at the time of cremation but also right from the day search was commenced after recovery of body, however, no information was given by him to the parents or the police but in the investigation for the first time, his statement were recorded under Section 161 Cr.P.C. on 8.8.2007 and, thereafter, his statements were recorded under Section 164 Cr.P.C. by the Civil Judge (JD) - cum - Judicial Magistrate, First Class, Rajsamand on 3.9.2007 to prove the fact of extra judicial confession.
In our opinion, the evidence of extra judicial confession is very week type of evidence, so also, in this case, it cannot be said that statement of Bhagga is trustworthy because the said witness remained present right from the recovery of body to cremation of the body, so also, for one month but after a long delay, gave statement of extra judicial confession against the accused appellant, therefore, his allegation is seriously doubtful with regard to extra judicial confession. [14]
In case of Lekh Ram and Brij Lal Vs. State of Punjab (supra) the Hon'ble Supreme Court held that if nobody took objection at the time of cremation, no adverse inference of guilt can be drawn for not having informed her father about death who lives away. Therefore, in this case also, the prosecution has failed to establish its own case the para no.40 and 43 of the said judgment are as follows:
"40. It appears to us that the whole approach of the High Court was erroneous. Every member of the family of the deceased, with whom she had been living before her marriage, had been informed. Even the brother, mother and the Masi (who had performed the marriage of the deceased) were conveyed the information and they were even present in the village before cremation and they visited the house of the appellant and attended the cremation. So no inference could be raised against the appellants for their failure to inform the father about the death of the deceased.
44. The deceased may have been married only a year back before the incident, but deceased was a 36 years old lady and who according to her own letters was under
treatment, from her own letters the nature of the illness is not clear. At the same time, there is no reliable evidence whatsover of any torture and much less about the demand for dowry. The father did not have a penny to spare. Three of the children had been adopted out. The whole story of Harbans Singh, P.W. 3, as to what transpired at the house of the deceased or in the cremation is [15] belied by Kishan lal, P.W.5. What the brother noticed in the house also does not figure in the F.I.R. Apparently, the F.I.R. was recorded much after the incident and with due deliberations between father and brother but the FIR-is silent. Nobody raised any objection to the cremation. The mother who was present at the time of cremation and at the house of the deceased never came in the witness box to support her son."
Similarly, in the case of Jaswant Gir Vs. State of Punajb (supra), the following adjudication was made in para no.7 and 8 of the judgment to discard the testimony of the witness of extra judicial confession, which reads as under:
7. The first and foremost aspect which needs to be taken note of is that PW 9 is not a person who had intimate relations or friendship with the appellant. PW9 says that he knew the appellant "to some extent"
meaning thereby that he had only
acquaintance with him. In cross-
examination, he stated that he did not visit his house earlier and that he met the appellant once or twice at the bus-stand.
There is no earthly reason why he should go to PW9 and confide to him as to what he had done. According to PW9, the appellant wanted to surrender himself to the police. But there is no explanation from PW9 as to why he did not take him to the police station. He merely stated that the appellant did not turn up thereafter. The circumstances in which PW9 went to the police station and got his statement recorded by the police on 14-11-1997 are also not forthcoming. In this context the statement of PW9 towards the [16] close of the cross-examination assumes some importance. He stated that he had some cases pending in the courts and that he was seeking the help of the police in connection with those cases and he was often going to Police Station Julkan. Thus, he could be a convenient witness for the prosecution. That apart, the alleged confession made by the appellant, as narrated by PW9, is not in conformity with the prosecution case. According to the prosecution, all the three accused were involved and PW9 stated so before the police and as per the statement made by PW9 to the police, all the three accused made the confession before him but he gave a different version in the court and that is why he was treated as hostile witness and leading questions were put to him by the prosecution. Thus, the credibility of this witness is in doubt. One more point to be noted is that the alleged statement of the appellant that the deceased was in a drunken condition cannot be correct as the doctor found no evidence of consumption of alcohol by the deceased.
8. Having regard to these features, we do not find assurance from all angels that the allege confession attributed to the appellant by PW9 is correct. It is not safe to base the conviction on the doubtful testimony of PW9 who gave different versions before the police and the Court. The High Court omitted to critically evaluate the evidence of PW9 and failed to take into account the doubtful features of his evidence."
In the case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in AIR 1984 SC 1622, cardinal principles pertaining to appreciation on circumstantial [17] evidence has been laid down by the Hon'ble Supreme Court. The parameters/guidelines laid down by the Hon'ble Supreme Court with respect to circumstantial evidence reads as under:-
"A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(') where the following observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.
[18]
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
In Ram Singh Vs. Sonia & Ors. Reported in AIR 2007 Supreme Court Page 1218, it has been laid down by the Hon'ble Court Supreme Court that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been clearly established and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. The relevant para 39 of the aforesaid judgment reads thus:
"39. The principle for basing a conviction on the basis of circumstantial evidence has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstances must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible [19] conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjectures of suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof, for some times unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between „may be true‟ and „must be true‟ and the same divides conjectures from sure conclusions."
In the case of Mohd. Arif Vs. State (NCT of Delhi) reported in (2011) 13 SCC 621, the Hon'ble Supreme Court while considering the question of circumstantial evidence held that each of the circumstances has to be assessed on its own merits. Quality rather than quantity of evidence is crucial factor in a case of circumstantial evidence. The court has to be cautious [20] against imaginary inferences or its prejudices, which m ay unwittingly creep in. The relevant paras, in such discussion has been made by the Hon'ble Apex Court with respect to cases of circumstantial evidence, reads as under: -
"190. There can be no dispute that in a case entirely dependent on the circumstantial evidence, the responsibility of the prosecution is more as compared to the case where the ocular testimony or the direct evidence, as the case may be, is available.
The Court, before relying on the circumstantial evidence and convicting the accused thereby has to satisfy itself completely that there is no other inference consistent with the innocence of the accused possible nor is there any plausible explanation. The Court must, therefore, make up its mind about the inferences to be drawn from each proved circumstance and should also consider the cumulative effect thereof. In doing this, the Court has to satisfy its conscience that it is not proceeding on the imaginary inferences or its prejudices and that there could be no other inference possible excepting the guilt on the part of the accused.
191. We respectfully agree with the principles drawn in the abovementioned cases and hold that the prosecution was successful in establishing the abovementioned circumstances against the appellant, individually, as well as, cumulatively. There indeed cannot be a universal test applicable commonly to all the situations for reaching an inference that the accused is guilty on the basis of the proved circumstances against him nor could there be any quantitative test made applicable. At [21] times, there may be only a few circumstances available to reach a conclusion of the guilt on the part of the accused and at times, even if there are large numbers of circumstances proved, they may not be enough to reach the conclusion of guilt on the part of the accused. It is the quality of each individual circumstance that is material and that would essentially depend upon the quality of evidence. Fanciful imagination in such cases has no place. Clear and irrefutable logic would be an essential factor in arriving at the verdict of guilt on the basis of the proved circumstances. In our opinion, the present case is such, as would pass all the tests so far devised by this Court in the realm of criminal jurisprudence."
In view of above discussion, it is abundantly clear that chain of events of circumstances are not established, so also, upon assessment of evidence on record, in the light of aforesaid judgments, we are satisfied that in view of principal laid down in the aforesaid judgments, the prosecution has failed to produce the circumstantial evidence so as to complete the chain of evidence to arrive at the finding that the accused appellant is guilty of committing murder of his wife none else. Admittedly, the incident of death took place on 06.07.2007 that too in the forest and during the search, appellant accompanied all other persons, so also, after recovery of dead body of Smt. Devali, the in- [22] laws were individually present, and also participated in cremation but did not raise any objection, nor they made any report to the police. However, later on after 7 days, the FIR was filed by the uncle of deceased that too on the basis of presumption, in which Challan was filed by the police on the basis of circumstantial evidence of recovery and extra judicial confession, but as per FSL report, no blood was found upon the axe, which is said to be recovered. Therefore, it is obvious that prosecution has failed to prove its case on the basis of circumstantial evidence or recovery of blood stained axe.
We have also examined the evidence of extra judicial confession, and find that PW--5 Bhagga keep mum for one month right from the date of incident to the date of recording of his statement on 8.8.2007, therefore, such type of conduct of the witness cannot be treated as reliable and trustworthy evidence so as to hold accused appellant guilty on the basis of circumstantial evidence.
[23]
In view of the above, discussion, we are of the opinion that prosecution has failed to prove its case beyond reasonable doubt.
Consequently, this cr. appeal is hereby allowed. The impugned judgment dated 12.12.2007 of conviction and sentence passed by the learned Addl. Sessions Judge (FT), Rajsamand in Sessions Case No.38/2007 against the accused appellant Lalu Ram for the charge for offences under Sections 302 and 201 IPC is hereby quashed and set aside. The accused appellant be released, if not needed in any other case forthwith.
Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellant is directed to forthwith furnish personal bonds in the sum of Rs.20,000/- and a surety bond in the like amount each, 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 the Supreme Court.
( G.R. MOOLCHANDANI ),J. ( GOPAL KRISHAN VYAS ),J. cpgoyal/-(PS)