Rajasthan High Court - Jaipur
Smt Babita And Ors vs State Of Rajasthan Through Pp on 19 November, 2024
Author: Pankaj Bhandari
Bench: Pankaj Bhandari, Ashutosh Kumar
[2024:RJ-JP:46951-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 1526/2017
1. Smt. Babita W/o Shri Narendra Sharma, R/o A-223,
Malviya Nagar, Alwar. Presently Lodged In Women Prison,
Jaipur.
2. Manish S/o Shri Narendra Sharma, R/o A-223 Malviya
Nagar, Alwar. Presently Lodged In Central Jail, Kota.
3. Narendra S/o Shri Banwari Lal Sharma, R/o A-223
Malviya Nagar, Alwar. Presently Lodged In Central Jail,
Kota.
----Appellants
Versus
State Of Rajasthan through PP
----Respondent
For Appellant(s) : Mr. N.A. Naqvi, Sr. Advocate assisted by Mr. Hakam Ali, Mr. Syed Adeel Naqvi, Adv.
For Respondent(s) : Mr. Rajesh Choudhary, GA-cum-AAG with Mr. Aman Kumar, AAAG, Mr. Gaurav Gupta, Asst. GA, Mr. Vivek Sharma, Addl. GA HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE ASHUTOSH KUMAR Judgment Reserved on :: 13/11/2024 Pronounced on :: 19/11/2024 (Per Pankaj Bhandari, J)
1. Accused/appellants have preferred this appeal aggrieved by Judgment and Order dated 14.07.2017 passed by Additional Sessions Judge No.2, Alwar in Session Case No.17/2014, whereby appellants have been convicted for the offence under Section 302 read with Section 34 IPC and have (Downloaded on 20/11/2024 at 10:07:16 PM) [2024:RJ-JP:46951-DB] (2 of 8) [CRLA-1526/2017] been sentenced to life imprisonment alongwith fine of Rs.10,000/-.
2. Succinctly stated the facts of the case are that complainant- PW-3 (Banwari Lal Sharma) on 30.10.2013 lodged a report (Ex.P-5) alleging that his wife (Gulkandi Devi) has been murdered by his son (Narendra Kumar Sharma), his daughter-in- law (Babita) and his grandson (Manish Sharma) after forcing iron rod in her mouth. It was also alleged in the FIR that Appellant No.3 (Narendra) after consuming liquor used to fight every day and give life threats to the complainant. It was also alleged that appellant No.3 got a cheque forcefully issued on 28.10.2013 for Rs.4 lac which was dishonored by the Bank on account of insufficiency of fund and murder has been committed due to the above enmity. Police after due investigation filed charge-sheet against appellants for offence under Sections 302/34 IPC. Accused appellants were charged for offence under Sections 302/34 IPC. Accused appellants denied the charges and sought trial, whereupon 18 witnesses were examined on behalf of the prosecution and 44 documents were exhibited. In defence, 11 documents were exhibited on behalf of the accused appellants. Explanation of accused appellants were recorded under Section 313 Cr.P.C. In the explanation, accused appellants have stated that they have been falsely implicated. After hearing the arguments, Court has convicted the accused appellants for offence under Section 302/34 IPC. Aggrieved by which, the present appeal has been preferred.
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3. It is contended by Mr. N.A. Naqvi, Sr. Advocate appearing for the accused appellants that case of the prosecution rests on the statement of PW-8 (Dharmendra) who was the tenant in the house of the complainant. It is contended that conduct of the witness is doubtful. The property in question was sold by the complainant on 28.10.2013 vide Ex.D-1 and as per the sale deed, the possession was handed over to the purchaser on the same day. It is also contended that eye witness PW-8 (Dharmendra) is not a natural witness as he attended his regular activities even after witnessing the offence, which shows that the witness was either not present at the place of occurrence or he himself committed the offence of murder.
4. It is also contended that the time of occurrence is not corroborated with the medical evidence. As per the evidence, the incident took place at around 06.00-06.30 am, postmortem was conducted on the same day at 04:30 pm. However, as per the Doctor, the time of death was beyond twelve hours of the time of conducting the postmortem report. It is also contended that the statement of PW-8 (Dharmendra) under Section 161 Cr.PC. was recorded on the next day and there is delay in recording the statement, which is fatal to the prosecution.
5. Counsel for the appellants has placed reliance on Jagjit Singh @ Jagga Vs. State of Punjab AIR 2005 SC 913; Balakrushna Swain Vs. State of Orissa 1971 (3) SCC 192; Harbeer Singh Vs. Sheeshpal & Ors. 2016 Cr.L.R. (SC) 1131; Narendrasinh Keshubhai Zala Vs. State of Gujarat 2023 LiveLaw (Downloaded on 20/11/2024 at 10:07:16 PM) [2024:RJ-JP:46951-DB] (4 of 8) [CRLA-1526/2017] (SC) 227; Gopal Singh and Ors. Vs. State of Madhya Pradesh (2010) 6 SCC 407; Sudip Mazumdar Vs. State of M.P. (1996) 5 SCC 368.
6. Mr. Rajesh Choudhary, learned GA-cum-AAG appearing for the State has opposed the appeal. It is contended that accused appellant No.1 is daughter-in-law, accused appellant No.2 is grandson and accused appellant No.3 is son of the deceased who have committed gruesome murder. It is contended that no question has been put in cross-examination to PW-3 (Banwari Lal Sharma) with regard to any false implications. It is also contended that a cheque of Rs.4 lac was given to the appellant No.3 and when the said cheque was dishonored, appellants got enraged and committed gruesome murder. The fact that the cheque was given and dishonored is established from the statement of PW-13 (Satish Chand Khandelwal), Branch Manager, Rajasthan Chhetriya Gramin Bank.
7. It is also contended that blood stained clothes of the accused were recovered at their instance from their house and were found to contain human blood. It is also contended that the eye witness PW-8 (Dharmendra) is a reliable witness and conduct of the witness cannot be said to be unnatural as he has witnessed a gruesome murder and every person behaves differently after having witness such incident. In this regard reliance has placed on Rana Partap and Ors. Vs. State of Harayana (1983) 3 SCC 327.
8. It is argued that there is no straight jacket formula with regard to conduct of witness and it would depend upon the facts (Downloaded on 20/11/2024 at 10:07:16 PM) [2024:RJ-JP:46951-DB] (5 of 8) [CRLA-1526/2017] and circumstances of each case. It is also contended that there is no reason as to why the complainant would falsely implicate his own son, grandson and daughter-in-law for such heinous offence.
9. We have considered the contentions and have perused the judgment as well as the evidence adduced before the Court below.
10. It is a specific case of PW-3 (Banwari Lal) who has deposed before the Court that on 29.10.2013, he had talked with his wife (Gulkandi Devi) and she had informed him that the appellants had visited the house at 08:30 pm and had threatened to kill her tomorrow morning. PW-3 has also deposed that on 30.10.2013, he talked to his wife at 06:00 am in the morning and his wife told him to return back home early. This witness has also deposed that he has given a cheque of Rs.4 lac to his son. The said cheque was dishonored, as there was insufficiency of funds in the account. Thereafter, appellant No.3 started quarrelling and on 29.10.2013 when he reached the house, his wife (Gulkandi Devi) and tenant told him to go to Rajgarh, otherwise appellants would kill him. Witness has stated that because of bouncing of cheque, Narendra was annoyed. Witness has also stated that his wife had asked him not to give cheque to the appellant No.3 as he used to consume liquor everyday. PW-8 (Dharmendra) has stated that he had witnessed the incident. He was present at the place of occurrence. This witness has also stated that appellants No.2 & 3 gave life threats to the complainant. Witness has narrated the incident. He has stated that appellant No.1 put the shawl around (Downloaded on 20/11/2024 at 10:07:16 PM) [2024:RJ-JP:46951-DB] (6 of 8) [CRLA-1526/2017] the neck of the deceased and hit the deceased with the stone. Appellant No.2 gave blow on the head and eye of the deceased with an iron rod and then forced the rod in the mouth of the deceased. At that time, appellant No.3 grabbed the hands of the deceased and all the three accused threatened him that if he narrated this incident to anyone, he will also face the same consequences. Witness has stated that after washing their hands, they left the place of incident. Witness has clearly stated that he was afraid and therefore, he went to his college. He has also stated that he had informed the police on the same day about the incident. Witness has clearly stated that he was afraid of a person who can kill his own mother, would have killed him as well. Witness is a young boy aged 21 years. His conduct cannot be said to be unnatural, as having witnessed such gruesome offence and after received a threat, he is bound to be in a state of shock and therefore, even his statement was recorded on the next day by the police, the same cannot be said to be fatal to the prosecution.
11. As far as the contention of counsel for the appellants that the house was sold and thus, there was no chances of PW-8 being present there, cannot be accepted for the very reason that no question with regard to house being sold and vacant possession being handed over to the purchaser has been put to PW-3 and PW-8. The fact that the deceased was in the house goes to show that the vacant possession was not handed over to the purchaser. A specific question was put to PW-3 (Banwari Lal) with regard to handing over the possession to the purchaser, to which he replied that the possession was not handed over at the time of (Downloaded on 20/11/2024 at 10:07:16 PM) [2024:RJ-JP:46951-DB] (7 of 8) [CRLA-1526/2017] Registry. It was handed over after two months of the Registry. The presence of the deceased as well as eye witness in the house is thus established.
12. The contention of counsel for the appellants that the time of occurrence does not match with the time of incident as narrated by PW-8 (Dharmendra) is also not having any basis for the very reason that in the postmortem report itself, the time of death is mentioned as around twelve hours prior to the postmortem examination. The incident took place at 04:30 pm on 30.10.2013 and as per the witness, the incident took place at 06:30 am on 30.10.2013. Thus, the incident had taken place within twelve hours prior to the postmortem examination. The contention of counsel for the appellants that the doctor has mentioned that the death took place twelve hours prior to the postmortem is misreading of the statement. The document itself clarifies that the death had taken place within twelve hours of conducting the postmortem.
13. In Maruti Ram Naik Vs. State of Maharashtra (supra), there was delay in recording the statement of the injured witness. In the facts of that case, the Apex Court has held that delay in recording the statement was fatal. In Jagjit Singh Vs. State of Punjab (supra), there was delay of three days in recording the statement of independent witnesses. In Balakrushna Swain Vs. State of Orissa (supra), evidences of witnesses were not recorded by the Investigating Officer for a number of days. The Court did not rely on the evidence, as there was falsehood on material (Downloaded on 20/11/2024 at 10:07:16 PM) [2024:RJ-JP:46951-DB] (8 of 8) [CRLA-1526/2017] aspects of the case. In addition to the statement of PW-8 (Dharmendra) who is an eye witness, other connecting evidence are also available. Clothes of the accused were recovered at their instance from their house and the same were found to contain human blood.
14. The above judgments cited by counsel for the appellants do not apply to the facts of the case as PW-8 (Dharmendra) has stated that he had informed the police about the incident on the same day. Even after the statements are recorded on the next day, the same cannot be fatal to the prosecution as there is convincing evidence to connect the accused appellants with the alleged offence.
15. The learned Trial Court has properly appreciated the evidence and has rightly convicted the accused appellants for offence under Section 302 IPC read with Section 34 IPC. We are thus, not inclined to entertain the present appeal and the same is accordingly dismissed. Judgment of conviction and sentence dated 14.07.2017 passed by Additional Sessions Judge No.2, Alwar is affirmed.
16. Pending applications, if any, stand disposed.
(ASHUTOSH KUMAR),J (PANKAJ BHANDARI),J
CHANDAN /
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