Rajasthan High Court - Jodhpur
Laxman vs State on 5 March, 2019
Bench: Sandeep Mehta, Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 878/2013
Laxman Mayeeda S/o Mangiya Mayeeda, aged about 30
years,R/o Peeplava, Police Station Kotwali, District Banswara.
(At present lodged at Central Jail Udaipur)
----Appellant
Versus
State of Rajasthan.
----Respondent
For Appellant(s) : Mr. Nishant Bora, Mr. Arpit Mehta.
For Respondent(s) : Mr. N.S. Bhati, Public Prosecutor.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
Judgment
Date of Judgment: 05/03/2019
(BY THE COURT: PER HON'BLE MEHTA, J.)
The accused appellant Laxman Mayeeda stands convicted and sentenced as below vide judgment dated 07.10.2013 passed by the learned Additional Sessions Judge, Banswara in Sessions Case No.47/2011:
Offences Sentences Fine Fine Default
sentences
Under Section Life Imprisonment Rs.10,000/ Three months'
302 IPC additional Simple
Imprisonment
(2 of 9) [CRLA-878/2013]
Being aggrieved of his conviction and sentence, the appellant has preferred the instant appeal under Section 374(2) Cr.P.C.
Brief facts of the case are that Dileep son of Vithla lodged an oral report at the Police Station Kotwali Banswara on 14.04.2010 alleging inter alia that his sister Bhuri had been given in Naata to Laxman Mayeeda S/o Mangiya Mayeeda, (the appellant herein), about 5 years ago. A son and a daughter were born to Bhuri from her wedlock with Laxman. On the previous night, Laxman called and asked the first informant to talk to Bhuri exhorting that he would be killing her. The informant talked to Bhuri who was crying. She told that Laxman had beaten her up brutally and was continuing to assault her. The informant, consoled Bhuri that he would come in the morning and try to counsel Laxman. On 14.04.2010 at about 11 o' Clock, Santu wife of Partu informed him that his sister was lying dead in the Aangan of her house. On this, the informant alongwith Rakma and Gautam went to Bhuri's house at village Pipalwa and saw her deadbody lying in the Aangan. They could notice large number of injuries on her head and on the other parts of the body. The informant alleged that Laxman had murdered Bhuri. On the basis of this information, a formal FIR No.152/2010 was registered at the Police Station Kotwali Banswara and investigation commenced. The dead body was subjected to postmortem. The proceedings of collecting blood stained soil, etc. were carried out. Various memorandums were prepared. Statements of the material witnesses were recorded under Section 161 Cr.P.C. The accused was arrested. In furtherance of the information provided by the accused to the I.O, an iron screw driver and a lathi allegedly used in the assault were (3 of 9) [CRLA-878/2013] recovered. Upon concluding investigation, a charge-sheet was filed against the accused appellant Laxman for the offence under Section 302 IPC in the Court of the Chief Judicial Magistrate, Banswara.
As the offence was Sessions Triable, the case was committed to the Court of Additional Sessions Judge, Banswara for trial. The trial court framed charge against the accused appellant for the offence under Section 302 IPC. He denied the charge and claimed trial. The prosecution examined as many as 12 witnesses and 36 documents were exhibited in support of its case. When questioned under Section 313 Cr.P.C. and confronted with the circumstances appearing against him in the prosecution evidence, the accused denied the same and claimed that the witnesses had falsely implicated him in the case. He alleged that Bhuri had come to him in Naata. Her brother Dileep was demanding jhagra money and because the amount was not paid, he had been falsely implicated. Bhuri's first husband was also embroiled in a dispute with her and thus, he might have killed her. However, no oral evidence was led in defence. After hearing the arguments advanced by the learned counsel for the accused as well as the defence, and after appreciating the evidence available on record, the learned trial court proceeded to convict and sentence the appellant as above. Hence this appeal.
Shri Nishant Bora, learned counsel representing the appellant, vehemently and fervently urged that the entire prosecution case is false and fabricated. There is no direct evidence on the record of the case to satisfy the Court that the accused assaulted or killed the deceased. The evidence of the first informant Dileep (PW-1) is not reliable because he did not disclose (4 of 9) [CRLA-878/2013] the numbers of mobile sims used by him and the deceased. Thus, as per Shri Bora, the statement of Dileep is uncorroborated by the call details and is totally unreliable. He further urged that the accused was arrested after more than five and half months of the incident and thus, the recoveries of weapons made at him become false, fabricated and unbelievable. In the alternative, he contended that if at all, the prosecution case is to be believed then apparently the husband and wife were fighting with each other over a trivial issue and that the appellant caused a single head injury to the deceased in the heat of the passion and thus, as per Shri Bora, the offence, if any, would not travel beyond Section 304 Part II of the IPC. Referring to the cross-examination conducted from the I.O. PW-12 Gopichand wherein, he admitted that Laxman was already married prior to his marriage with deceased and that his first wife was also residing with him, Shri Bora urged that manifestly, from this admission of the I.O, it becomes clear that the accused appellant was not the only person present in the house with the deceased when the incident took place and thus, he cannot be required to explain the circumstances prevailing during the incident by adverting to Section 106 of the Evidence Act. He placed reliance upon a Supreme Court decision in the case of Ashok vs. State of Maharashtra, reported in (2015)4 SCC 393 and urged that burden of proof under Section 106 of the Evidence Act cannot be shifted on to the accused because the prosecution has not proved the primary facts required to establish its case. On these grounds, he sought acceptance of the appeal and craved for acquittal of the appellant.
Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellant's (5 of 9) [CRLA-878/2013] counsel. He urged that the first informant Dileep had no animosity whatsoever against the appellant which could persuade him to falsely implicate him for the murder of Bhuri. The death of Bhuri took place by a brutal assault caused by means of a blunt weapon inside the house of the accused. Thus, the burden of establishing as to how the incident took place would definitely be shifted on to the accused as these facts were exclusively in his knowledge. Drawing the Court's attention to the cross-examination conducted from various witnesses and the statement of the accused appellant, the contention of the learned Public Prosecutor was that the accused did not set up a defence that he was not present in the house or that anyone other than the accused was also present in the house so as to absolve of shifting burden of proof provided under Section 106 of the Evidence Act. He urged that in view of the categoric and affirmative testimony of PW-1 Dileep that the accused made him to talk with the deceased Bhuri in the odd hours of night and that she complained to him at that time that the accused was thrashing her and, since this allegation is corroborated in material particulars by the medical evidence in form of the evidence of Dr. K.S.Bhatnagar (PW-7), the prosecution has proved its case beyond all shadows of doubt against the accused by clinching and convincing evidence and hence, he sought dismissal of the appeal in entirety.
We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned judgment and threadbare sifted and re-appreciated the evidence available on record.
The deceased had gone in Naata with the accused five and a half years prior to the incident. On the fateful day, she was all (6 of 9) [CRLA-878/2013] alone with the accused in the matrimonial home. The accused put a call to his brother-in-law Dileep (PW-1) and made him to talk to Bhuri and exhorted that he would be killing her. Dileep pleaded with the accused that he should refrain from his offensive acts and that he would be coming in morning. He talked to Bhuri who complained that she was being beaten by the accused. On the next morning, Santu called the first informant Dileep and told him that Bhuri was lying dead in the Aangan of her house. The informant reached to village of the accused and saw the deadbody of Bhuri lying in the Aangan. Noticeable injuries were visible on her head and other parts of the body. The FIR (Ex.P/2) was filed by the witness at the Police Station Kotwali Banswara on 14.04.2010 at about 12.05 pm. However, he could not remember the mobile numbers of his own as well as that of Laxman. On a careful perusal of the cross-examination carried out from Dileep (PW-1), it is apparent that not even a faintest suggestion was given to him by the defence that Laxman did not make him to talk with the deceased on the fateful night. Regarding the suggestion of jhagra money, Dileep feigned ignorance and stated that his parents might have better knowledge about the same. Thus, the defence theory that Dileep was inimical to the accused Laxman on the account of pending Jhagra money, is totally falsified. A perusal of the cross-examination of Dileep also makes it clear that the suggestion of the defence was that when the mobile call was put to him by the accused, he was not able to talk to his sister. Thus manifestly, the defence too does not dispute the fact that a call was indeed made by Laxman to the witness Dileep in the odd hours of night on which, Bhuri was done to death by violence in the matrimonial home. In this background, undoubtedly, strong (7 of 9) [CRLA-878/2013] evidence is available on the record of the case which shows that the appellant was present with the deceased in the house and was bashing her up. Not only this, in order to show his bravado, the appellant called Dileep and made him to talk with his sister intending it to be her last conversation. Even in the statement of the accused himself recorded under Section 313 Cr.P.C., he did not deny or dispute the fact that he was not present with the deceased in the house on the fateful night. The fervent plea of Shri Bora that apart from the appellant, his wife from the previous wedding was also present in the house, is absolutely flimsy and untenable when we consider the statement of Dileep (PW-1) and the statement of the accused himself. No suggestion was given to Dileep in his cross-examination that anybody other than the accused appellant and his wife Bhuri was also residing in the matrimonial home. As per the postmortem (Ex.P/11) and the evidence of the Medical Jurist Dr. S.K. Bhatnagar (PW-7), a large number of injuries including multiple bruises and abrasions were noticed on the body of the deceased when postmortem was conducted by the doctor. All the injuries were caused by blunt weapons. Injury No.1 was a lacerated wound on the back of the head which proved fatal. Multiple abrasions numbering 10 and 8 respectively were noticed on the legs of the deceased. Thus, it is apparent that the accused inflicted brutal violence with a blunt weapon upon his own wife Smt. Bhuri while she was in the house all alone with him. The repetition of blows and the number and location of the injury clearly shows that the assault was made in a highly brutal manner with the sole intention of killing Smt. Bhuri. The evidence of the other witnesses examined by the prosecution is formal in nature. The evidence of recoveries of weapons (8 of 9) [CRLA-878/2013] becomes irrelevant when we consider the aspect that the accused was arrested as late as on 18.10.2010 i.e. after more than six months of the occurrence. However, the abscondance of the accused for this long period of six months adds strength to the prosecution case. If at all, the accused was innocent as he claimed then, there was no reason for him to abscond from his house for this long period. The facts in the case of Ashok vs. State of Maharashtra (supra) replied upon by Shri Bora, are totally distinguishable because that case involved murder of wife and two daughters of the deceased in a hilly area and not inside the family house. The case at hand involves the murder of a wife by the husband within the close confines of their matrimonial home and thus, virtually it is a case of custodial murder and in such cases, the rigor of Section 106 of the Evidence Act would definitely operate if the accused being the owner of the house fails to offer any explanation as to how his wife received large number of injuries and that too in the dead of the night. We are also least impressed by the contention of Shri Bora that the offence alleged against the accused would not travel beyond Section 304 Part II IPC. On an appreciation of the medical evidence coupled with the conversation which was held between the accused and the first informant while the assault was underway, it is apparent that the accused declared his intention to do away with the deceased and thereafter, brutally assaulted her causing her numerous injuries. As we noted above, apart from the fatal head injury, the Medical Jurist took note of the fact that there was a lacerated wound on the left eye of the deceased, there were abrasions on her neck. There was a lacerated wound on her elbow and multiple abrasions numbering 10 and 8 respectively were noticed on her legs. Thus, (9 of 9) [CRLA-878/2013] the cruel and brutal nature of the assault made by the accused upon his own wife can be adjudged from the large number of injuries inflicted on her person while she was at his mercy. Thus, we are of the opinion that the instant case cannot be brought within any of the exceptions provided under Section 300 IPC so as to tone down the charge from the offence under Section 302 IPC. The trial court appreciated the evidence available on record in an absolutely just and apropos manner and reached to the only possible and logical conclusion that the accused murdered the deceased by assaulting her brutally within the confines of the matrimonial home.
As a result, we find no merit in the appeal which is hereby rejected.
(VINIT KUMAR MATHUR),J (SANDEEP MEHTA),J
11-Tikam/-
Powered by TCPDF (www.tcpdf.org)