Rajasthan High Court - Jodhpur
Smt. Prem Kanwar vs . State Of Rajasthan on 17 November, 2015
Author: Govind Mathur
Bench: Govind Mathur
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
JUDGMENT
Smt. Prem Kanwar Vs. State of Rajasthan
D.B. CRIMINAL APPEAL NO. 329/2009
against the judgment dated 24.4.2009
passed by learned Additional Sessions Judge,
(Fast Track) No.2, Pali in Sessions Case
No.35/2008.
Date of Judgment :: 17.11.2015
PRESENT
HON'BLE MR. JUSTICE GOVIND MATHUR
HON'BLE MISS JUSTICE JAISHREE THAKUR
Mr. Vineet Jain, for the appellant (s)
Mr. JPS Choudhary, Public Prosecutor
Mr. N.A. Rajpurohit, for the complainant
...
BY THE COURT (PER HON'BLE MATHUR, J.)
By the judgment impugned dated 24.4.2009, the learned Additional Sessions Judge (Fast Track) No.2, Pali recorded conviction of appellant-accused Smt. Prem Kanwar for the offence punishable under Section 302 I.P.C. and sentenced her to undergo life term imprisonment with a fine of Rs.5000/- and further to undergo six months' simple imprisonment in the event of default in payment of fine.
The facts necessary to adjudicate this appeal are that on 19.5.2008 at about 12:30 pm Shri Badri Das (PW-7), father of 2 deceased Smt. Durga, lodged a First Information Report at Police Station, Pali stating therein that his daughter Durga came to his home about 6-7 days earlier from Mandla where she has been married. At about 10:00 am of the same day, she received a telephonic call from phone no.9784436175 and after having little conversation, she left the house conveying to "Rekha", her younger sister that she was going to her aunt's ('Bhua') house. Two persons, namely, Vishnu Das and Kalu Das saw her going towards the dam of water reservoir and she was followed by Smt. Prem Kanwar. Smt. Prem Kanwar was carrying a bamboo basket on her head. After sometime, Ashok S/o. Shri Bhanwar Lal saw dead-body of a woman near dam site on the way and informed about that to the villagers. The villagers recognized the dead-body as of Durga. Durga had some quarrel with Prem Kanwar on 18.5.2008 at about 2:00 pm. It was also noticed that on 18.5.2008 Smt. Durga had three calls from phone nos. 9252798721, 9784436175 and 9950395160. From the spot of occurrence a pen and a slip on which name of one Shri Om Prakash Parihar was written, were found. An apprehension was disclosed about killing of Smt. Durga by Shri Moti Singh and his wife Smt. Prem Kanwar.
On the basis of the information given, a case was lodged and the investigation commenced.
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During the course of investigation, the Investigating Agency subjected the dead-body to an autopsy at Bangar Hospital, Pali and as per its report, the cause of death was hemorrhagic shock due to injury to mega-vessels at neck and associated multiple injuries. The vaginal swabs, semen and uterus were taken for necessary examination by the Forensic Science Laboratory. The dead-body was having 20 injuries, out of which, mostly were incised wounds with serious amputation on the left and right shoulders. The Investigating Agency arrested accused-appellant and at her instance certain recoveries were made.
After completion of investigation, a report as per Section 173 Cr. P.C., was filed and the court after providing opportunity of hearing to the accused, framed charges against her for commission of an offence punishable under Section 302 I.P.C. On denial of the same, the trial commenced as desired.
The Investigating Agency supported its case with the aid of 28 witnesses and by exhibiting documents Exhibit-P/1 to Exhibit-P/42A. An opportunity was given to the accused- appellant to explain adverse and incriminating circumstances existing in prosecution evidence, which was termed as false and concocted by the accused. She stated that no recovery of any article was made at her instance and she was implicated falsely. Her thumb-impressions on several pages were taken under 4 pressure. She never followed Durga towards the dam site, through, Durga came to her residence in morning just to play with her kid. She was keeping cordial relation with Durga and she never complained anything about her relations with Moti Singh. She also denied existence of illicit relation of Durga with her husband.
In defence, testimony of Suresh (DW-1) , Jagdish Singh (DW-2), Jagdish Prasad (DW-3), Moti Singh (DW-4) and Raghunath Singh (DW-5) were recorded. The accused also exhibited documents Exhibit-D/1 to Exhibit-D/43A.
The learned trial court after examining the evidence available on record and hearing the arguments advanced by learned public prosecutor and counsel for defence, held the accused-appellant guilty for the charge levelled and recorded conviction.
In appeal, the argument advanced by learned counsel for the appellant is that the conviction of accused-appellant has been recorded by relying upon circumstantial evidence, which as a matter of fact, does not indicate only one conclusion i.e. about the involvement of present appellant in the crime in-question. It is stated that reasonable doubt exists in accepting the prosecution case.
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Learned Public Prosecutor on the other hand submits that the circumstantial evidence available on record forms a complete chain and that leads to only one conclusion i.e. involvement of accused-appellant in the crime concerned. Learned Public Prosecutor states that the prosecution successfully established motive for commission of offence, the circumstance of last seen, then recovery of weapon of offence and clothes of accused having blood-stains with the blood-group matching with the blood-group of deceased.
Heard learned counsel for the appellant, learned Public Prosecutor and examined the entire record available.
The case of prosecution is that on 18.5.2008 accused had some quarrel with deceased as she alleged illicit relationship of her husband with deceased. In the next morning she followed deceased with a bamboo basket on her head, in which a 'khoont' was kept and with the aid of that she gave fatal blows to the deceased and that 'khoont', during the course of investigation was recovered by the Investigating Agency from her exclusive possession.
The learned trial court accepted the prosecution story which is supported by the evidence relating to the circumstances noticed above. So far as the motive is concerned, the 6 prosecution relied upon the statements made by PW-2 Vishu Das, PW-6 Rekha, PW-8 Pushpa and PW-27 Kalu Ram.
While deposing before the trial court Shri Badri Das (PW-7) stated that about three months ago in the evening Durga and Prem Kanwar had a quarrel. He then corrected himself by saying that the quarrel took place in the afternoon. As per this witness, Prem Kanwar objected that why Durga talks with her husband.
Rekha (PW-6), younger sister of deceased, stated that her sister Durga informed Badri Das, their father, on 18.5.2008 that Prem Kanwar is having some doubt on her for having illicit relations with Shri Moti Singh. In the next morning when her father and mother were not present at home, daughter of Moti Singh came to their house followed by Prem Kanwar, who took her to her residence. This witness during the course of cross- examination stated that in the morning Prem Kanwar had no complaint with Smt. Durga.
Smt. Pushpa (PW-8), wife of Shri Vishnu Das (PW-2), also disclosed about some quarrel between deceased Durga and Smt. Prem Kanwar on 18.5.2008. In cross-examination this witness stated that she never saw Prem Kanwar or any other member of her family making any complaint about the alleged illicit relationship of Moti Singh with Durga. Shri Kalu Ram 7 (PW-27) stated that he heard something about affair between Durga and Moti Singh. On the basis of the statements noticed above, the trial court arrived at the conclusion that the accused had sufficient motive to kill Smt. Durga.
On complete examination of the evidence relating to these witnesses, we are of considered opinion that the trial court arrived at a conclusion without examining the strength of the evidence adduced. True it is, Rekha, Smt. Pushpa and Vishnu Das stated about some quarrel between Durga and Prem Kanwar on 18.5.2008 but they also disclosed about normal relationship between the accused and deceased. An important witness in this regard is Rekha (PW-6), as per whom Prem Kanwar visited her house even in the morning of 19.5.2008 and at that time she did not made any complaint about conduct of the deceased. Shri Badri Das (PW-7) and Smt. Ganga Devi (PW-4) on the contrary stated that they had no knowledge about any relationship of their daughter with Moti Singh and further about any annoyance of Prem Kanwar on this issue. Smt. Ganga Devi (PW-4) in specific terms stated that she never had any doubt that Prem Kanwar may kill Durga and while stating she had no complaint with Prem Kanwar. She also failed to give any reason of killing Durga by Prem Kanwar. The evidence discussed is sufficient to establish that on 18.5.2008 some hot deliberations took place between the deceased and Smt. Prem Kanwar but in the next morning they were quite cordial. Merely on the basis of a minor 8 quarrel, the trial court reached at the conclusion about strong motive. The circumstances addressed are not definite and sufficient enough to establish that Smt. Prem Kanwar had a strong motive leading her to commit the crime of murder. Looking to the evidence adduced by Rekha and Smt. Ganga Devi, we are of the considered opinion that the strength of the evidence adduced is not sufficient to establish a strong motive for committing a serious crime.
The other evidence on which the learned trial court placed reliance is with regard to movement of Prem Kanwar towards the dam site behind Smt. Durga. Shri Vishnu Das (PW-2), Shri Jagdish (PW-14) and Shri Kalu Ram (PW-27) adduced evidence in this regard. Shri Vishnu Das (PW-2) stated that on 19.5.2008 he was selling 'Kulfi' and at that time he saw Durga going towards dam site followed by Prem Kanwar. Suffice to mention that this witness happens to be the cousin brother of the deceased. The other witness Jagdish (PW-14) stated that on the fateful day he saw Durga and Prem Kanwar on the way and also asked deceased as to when she came to her parental house and further where she was going. As per this witness, Smt. Durga replied that she came to her parental house 2-3 days earlier and further that she was going to retrieve the calf. This witness further stated that nothing was there in the hands of Durga but Prem Kanwar was having a bamboo basket with a 'khoont' (an agricultural equipment with sharp-edged straight 9 blade) and a water container normally kept by villagers while going to meet natural calls. An important aspect of the statement given by this witness is that after half an hour he again saw Smt. Prem Kanwar returning to village and at that time also Prem Kanwar was carrying bamboo basket, 'khoont' and water container in her hands. On asking, Smt. Prem Kanwar informed this witness that Durga has gone with her aunt ('bhua'). On minute examination of the statement given by this witness, it is apparent that he met Smt. Prem Kanwar twice; at the first instance she was with deceased Durga and was carrying a bamboo basket, a 'khoont' and water container and the second meeting was after half an hour and at that time also Prem Kanwar was carrying a bamboo basket, 'khoont' and water container. In this meeting this witness had a talk with Smt. Prem Kanwar. Important to notice that this witness did not see any blood-stains on the 'khoont' or on the clothes of Smt. Prem Kanwar during his second meeting with her. As per prosecution, Prem Kanwar went with Durga and committed her murder. She returned to her house and kept the blood-stained 'khoont' and blood-stained wearings under her exclusive possession. If that was so, then Shri Jagdish (PW-14) must have noticed blood- stains on the 'khoont' and the wearings of Smt. Prem Kanwar. In normal course availability of blood-stains on an agricultural equipment and the wearings can't remain unnoticed. If the accused was having blood-stained 'khoont', then Jagdish must have noticed that, but he has not said anything about such 10 stains. The evidence adduced by Jagdish create doubt in accepting the prosecution story about killing of Durga by Prem Kanwar with the aid of 'khoont', that was recovered at her instance. The other witness on which the prosecution placed reliance is Shri Kalu Ram (PW-27), as per whom Durga was going towards dam site followed by Smt. Prem Kanwar on the fateful day. Nothing more has been stated by this witness. In totality, the evidence adduced by Shri Vishnu Das, Jagdish and Kalu Ram establishes movement of Smt. Durga towards the dam site and she was followed by Smt. Prem Kanwar and nothing more then that. The other circumstance on which the prosecution heavily relied upon is with regard to recovery of blood-stained 'khoont' and blood-stained wearings of the accused. The group of blood-stains available on these articles are admittedly matching with the blood group of deceased. Shri Gopal Singh (PW-28), the Investigating Officer, while narrating all the steps taken during the course of investigation stated that the accused was arrested in the evening of 19.5.2008 and on 21.5.2008 she made certain disclosures on the basis of which a 'khoont' was recovered as per document (Exhibit-P/8) and her wearings were recovered as per document (Exhibit-P/10). The articles were having blood-stains on several places.
While examining effect of recovery of weapon of offence, we would like to refer the evidence adduced by Rekha (PW-6) and Shri Jagdish (PW-14). As already stated, Shri Jagdish met 11 Smt. Prem Kanwar twice. In both the meetings he noticed that she was carrying a 'khoont' with her, however, he did not disclose availability of blood-stains on the 'khoont'. If the 'khoont' carried by Smt. Prem Kanwar had blood-stains, then this fact must have been noticed by Jagdish. A man who notices each and everything about the accused, including the articles carried by her must have noticed availability of blood-stains but he has not stated anything about that. It is further relevant to notice that as per Rekha (PW-6), after having information about recovery of some dead-body near dam site she left her house and proceeded towards the site of occurrence and while on the way, she met Prem Kanwar. Prem Kanwar informed that the dead-body lying is of Smt. Durga. In our opinion, a young lady of 23 years after committing a serious crime of murder, that too, by giving 20 fatal injuries could have not been so calm that she may inform and give details of the dead-body and that too a relative of the person to whom she killed. A criminal in normal course after commission of crime loses his/ her calm and tries to escape and hide from the scene. In the instant matter, the circumstances are quite different. The accused as per prosecution story met Shri Jagdish as well as Rekha after committing murder of Durga but was quite calm and was looking normal. She answered the queries made to her. The witness did not notice any abnormality with her. These facts and features have a reasonable doubt in accepting the prosecution story by accepting these circumstances.
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Besides the above, we have also noticed several discrepancies in the prosecution case. As per the prosecution, FIR was lodged at 12:30 pm on 19.5.2008. This fact is apparently incorrect in view of document (Exhibit-P/42), a copy of 'Rojnamcha', according to which, the Station House Officer, Police Station Sadar, Pali received some information telephonically at 12:40 pm about killing of Smt. Durga. He proceeded for the site at about 2:40 pm and thereafter a written report was taken at 8:40 pm. We also noticed that as per Gopal Singh (PW-28), the Investigating Officer, Moti Singh husband of the accused and the accused Smt. Prem Kanwar were held up for interrogation purposes in day hours. Ultimately a case was lodged only against Smt. Prem Kanwar. No investigation at all was made by the Investigating Agency about the call-details relating to the phone numbers referred in the FIR itself. This fact gains more strength in view of the statement by Rekha (PW-6) to the extent that her sister Durga left the house after receiving a telephonic message by Shri Moti Singh. The prosecution also has not enquired anything about Ashok, who at the first instance saw dead-body and informed to the villagers about that. The prosecution also has not cared to make any investigation upon the pen and paper slip recovered from the spot, where the crime occurred. In totality, the loopholes available in the prosecution case adds strength to the doubt already expressed. 13
In view of whatever stated above, the appeal deserved acceptance, accordingly, the same is allowed. The judgment impugned dated 24.4.2009 passed by learned trial court is quashed and set aside. The conviction recorded therein and the sentence awarded consequent thereto are also declared illegal and hence are set-aside. The appellant be released from State custody forthwith, if not, required in any other case.
[JAISHREE THAKUR], J. [GOVIND MATHUR], J.
Sanjay
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