Rajasthan High Court - Jodhpur
Mst. Savitri vs State on 16 May, 2017
Bench: Gopal Krishan Vyas, G.R. Moolchandani
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 130 / 1989
Smt. Savitri widow of Balveer, by caste Jat, R/o Nethrana, Tehsil
Bhadra, District Sri Ganganagar.
----Appellant
Versus
The State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. Pritam Solanki, Amicus Curiae
For Respondent(s) : Mr. Vishnu Kachhawaha, P.P.
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE G.R. MOOLCHANDANI Judgment (per Hon'ble Moolchandani,J.) 18/05/2017 REPORTABLE The instant appeal is directed against the judgment dated 20/04/1989 passed by Additional Sessions Judge, Nohar in Sessions Case No.68/1987 convicting the appellant- accused Mst. Savitri for the offence under Section 302 IPC and sentenced her to life imprisonment together with a fine of Rs.500/- in default whereof, to undergo six months' rigorous imprisonment.
2. The recitals of F.I.R. (Ex.P/4) reads as under:-
"lsokesa Jheku Fkkusnkj lkgcth iqfyl Fkkuk HkknjkA (2 of 14) [CRLA-130/1989] Jhekuth] izkFkhZ xkao usBjkuk rg- Hkknjk dk jgus okyk gSA eSa djhc ,d lky ls gekjs [ksr jksgh usBjkuk esa pd 4 NTR esa <k.kh cukdj cky cPpksa lfgr jgrk gwWaA esjs nks yM+ds cyohj ftldh mez djhc 18 o'kZ gS blls NksVk egkohj ftldh mez 6 o'kZ gSA cyohj dh "kknh ,d lky igys xkao fupdjkbZ esa lkfo=h iq=h euhjke tkV ls dh Fkh cyohj dh vkSjr 12] 13 fnu ls gekjs ?kj vk;h gqbZ gSA x;h jkr cyohj o cyohj dh vkSjr lkfo=h nksuks <k.kh ds fiNyh rjQ lk;s gqos FksA eSa o esjh vkSjr cky cPpksa lfgr <k.kh ds vkxs lks;s gqos Fks jkr dks djhc 1&1½ cts cyohj esjk yM+dk o mldh vkSjr lkfo=h Hkkx dj vk;s cyohj us esjh vkSjr csyk dks txkdj dgk fd eka eq>s fn;k rc eSa Hkh tkx x;k cyohj ds xnZu ij pksV yxh gqbZ Fkh [kwu fudy jgk Fkk cyohj dh vkSjr lkfo=h us crk;k fd pksV ekjus ds ckn eSa tx x;h rc nks vkneh Hkkxrs fn[kkbZ fn;s gekjk jksuk lqudj iM+kSlh <k.kh dk "ksjflag vk;k ckn esa gjlq[k tkV dks cqyk;k gjlq[k dk yM+dk jktsUnz xkao ls thi ysdj vk;k rc ge cyohj dks bykt ds fy, thi esa Hkknjk yk;s rks vLirky igqaprs gh cyohj us ne rksM+ fn;k esjs yM+ds cyohj dh yk"k ljdkjh vLirky Hkknjk esa NksM+dj fjiksVZ nsus vk;k gqaA esjs yM+ds cyohj dks fdlh us xnZu ds pksV ekjdj ekj fn;k gSA fjiksVZ nsrk gwa dk;Zokgh dh tkosA izkFkhZ sd/-
lqYrku s/o vtqZujke tkV
fnukad 2-9-87 fuoklh usBjkuk rg- Hkknjk "
and this FIR was registered as FIR No.127/1987 under Section 302 IPC on 02.09.1987 at P.S. Bhadra at 4.00 AM.
3. Heard submissions of rival sides, learned counsel for the appellant has contended that the learned trial court has faulted in arriving at the decision of guilt, there is no direct evidence and the FIR was lodged against unknown assailants, theory of extra-judicial confession has intentionally been created in order to protect actual culprits, step-mother Smt. Bela, who was having animocity with his deceased step son Balveer, since (3 of 14) [CRLA-130/1989] she was demanding jewelry from him and in order to deprive him from his legal rights, a concocted story has been invented to frame innocent widow lady. The couple was not having any strained relations, they were happily married and living comfortably without any discontent and the nature of injury, which is quite serious, cannot give opportunity to the injured/deceased to narrate that he was perperated with the kind of fatal injuries by "kassi" by the accused-appellant and an injured sustaining given type of injury, can never survive even for some minutes to say and utter anything. Conduct of all the witnesses is dubious and their utterances are not reliable, nothing of alleged kind of recovery has been made on the alleged instance and alleged information of the accused-appelalnt, entire story is based on sheer conjectures, the trial court has not appreciated the evidence in right perspective and has passed impugned judgment, which is liable to be reversed and quashed, so, the appeal be allowed and accused-appellant be acquitted.
Per contra, learned Public Prosecutor has contended that version of extra-judicial confession, which was made by Smt. Savitri, wife of deceased, is accurate and all the important witnesses of the prosecution have altogether uttered similar kind of version, which is enough to indicate that there is trustworthiness in the evidence of the prosecution witnesses.
"Kassi", weapon of assault, has been found stained with human blood and the clothes of deceased as well as accused-appellant Smt. Savitri, have also been found stained with human blood, nothing abnormal is there in the evidence of the prosecution and (4 of 14) [CRLA-130/1989] every witness of the prosecution has uttered truth, prosecution has completely succeeded in establishing its case beyond reasonable doubt and there is no alleged infirmity in the judgment impugned, appeal lacks merit, so it be dismissed.
4. Perused the record and examined the material and evidence of the witnesses.
5. Ex.P/4 FIR, which has been lodged by "Sultan", father of deceased Balveer on 02.09.1987, at 4.00 AM, does not disclose anything relating to alleged "extra-judicial confession"
having been made by wife of the deceased Balveer, rather the FIR has been lodged against "two anonymous assailants" and it is pertinent to observe here that the chalk FIR Ex.P/5 itself has got recital in the column of the accused "nks dal vKkr", probably "Kanns"
has been used to denote naming to the mythological usurper killer king "kaans", perusal of the FIR also establishes that there is no identity or name of the assailants, revealed at the time of lodging of the FIR, which is accepted by the complainant as well as the police registering the FIR.
6. Reference to the Ex.P/12 postmortem report, which delineates the nature of injuries, is important to deal with, since those have been caused on a vital part of body cutting the neck almost semi to the girth of the neck, in which "fifth cervical vertebra has been found cut along with arteries including carotid artery and incised wound 4½"X3½"cervical vertebra with cutting of skin muscles, carotid vessel, nerve and fifth cervical vertebra, right side near lower 1/3rd laterally by sharp weapon. PW-8 Dr. Mahaveer Prasad has also opined (5 of 14) [CRLA-130/1989] similar by saying that, "mlds ftLe ij xjnu ds nkfguh rjQ ,d dVk gqvk ?kko tks lk<s pkj bUp X lk<s rhu bUp tks ljohdy oVhZcjk dks dkVrk gqvk FkkA ftlls mldh peM+h] ekal isf"k;ka] djksVhM /kefu;ka] ukfM+;ka o ikapoh ljokbdy ojVhcjk Hkh dVh gqbZ FkhA mlds gn; ds nksuks psECcj [kkyh Fks o lhdM+s gq, FksA cM+h /keuh dsjkVhM dVh gqbZ FkhA xjnu dh ikapoh ljokbZdy ojVhcjk Hkh dVk gqvk FkkA ". He has further observed in his cross- examination that, ";g ckr lgh gS fd dsjksVhM osly uoZl dVus ls fnekx esa [kwu dh lIykbZ de gqbZ gSA ;g ckr lgh gS fd fnekx esa [kwu dh lIykbZ de gksus ls ,d nks feuV esa gh ? kk;y csgks"k gks ldrk gSA"
This aspect has very well ratified by all the important witnesses of the prosecution since PW-1 Bela, step mother of deceased, has said that when she saw Balveer, "his neck was hanging towards left side and the injury was profusely bleeding", likewise, PW-6 Sonaram has also said that neck was cut and it was bleeding.
7. PW-10 Munir Khan, before whom the FIR Ex.P/4 was submitted and who lodged the same vide Ex.P/5 chalk FIR, has said that the FIR was lodged by "Sultan", it contains his thumb impression and after registering FIR, statements of complainant Sultan were also recorded and he has further said that he was posted at Bhadra on 02.09.1987 as Head Constable and was there as Incharge Thana and has said that on the same day, at about 11.30 AM, ASI Palaram returned from Goga Medhi and took over the investigation in his hands and PW-11 Palaram, ASI has said that after returning from Goga Medhi, at about 11.30 AM on 02.09.1987, approaching hospital, he obtained case diary from Munir Khan and prepared panchnama Ex.P/2 and got the autopsy done and seized blood stained pajama of deceased (6 of 14) [CRLA-130/1989] Balveer, sealed it vide Ex.P/3 and subsequently, after going to Goga Medhi, handed over the diary to S.H.O. and in his cross- examination, he has said that he had been to the venue with S.H.O. and went there at about 4.30 PM and remained there for 2 to 2½ hours there and has also said that it is correct that on that day, SHO did not record statements of any witness before him, several women were sitting in the dhani of Sultan and no lady was examined by thanedar sahab before him, whereas PW-12 Kashiram, SHO of P.S. Bhadra, has narrated that he conducted the investigation on 02.09.1987 and in his cross-examination he has said that, "eSus lqYrku ds frraack c;ku fnukad 2-9-87 dks fy;s FksA ;g ckr xyr gS fd eSus lqYrku ds frrack c;ku 3-9-87 dks fy;s gksaA ;g ckr lgh gS fd equhj [kka goynkj us xokg lqYrku ds 2-9-87 dks tks c;ku fy;s Fks os esjs lqiqnZ dj fn;s FksA eSus xokg lqYrku ds frrack c;ku lqYrku ds equhj [kka }kjk fy;s x;s c;ku dh rLnhd djus gsrq fy;s Fks D;ksafd mlus c;ku dh iqoZ c;ku dh iw.kZ rLnhd ugha dh FkhA ;g ckr xyr gS fd eSus csyk ds c;ku fnukad 2-9-87 dks fjdkMZ uk fd;s gksa vkSj fnukad 3-9-87 dks fy;s gksa", which goes to show that something is fishy with respect of the investigation as well, because according to the say of ASI Palaram, he had been to the venue with S.H.O. Kashiram, who did not record statements of any witness before him and contrary to it, PW-12 Kashiram says that he even recorded supplementary statements of Bela and Sultan on 02.09.1987.
8. Testimony of Sultan narrates that his police statements were not recorded by anybody on 02.09.1987 since he has said that his statements were recorded by Kashiram at 6.00 in the evening and his statements were taken "next day" to the statements of his wife Bela, whereas Ex.D/2, "supplementary- statements" of Sultan have been shown to be recorded on 02.09.1987. Ex.D/1, police statements of Smt. Bela have also (7 of 14) [CRLA-130/1989] been recorded on 02.09.1987, whereas, Smt. Bela PW-1 has said that when police came, then she was crying, so after getting the spot sketch drawn from distance, police left and did not record her statements.
9. Story of the prosecution hinges upon the version that injured Balveer himself made revelation to his mother and father regarding his injury by saying that his "raand" (wife) was the perperator of excision but appreciation of the medical evidence goes to establish that the type of injury sustained by injured/ deceased would have not given such an occasion to utter, so much to others since the nature of injury would have incapacitated in uttering anything alike.
10. Smt. Bela, PW-1 has asserted that she woke-up, when her injured son Balveer fallen upon her, at that time "Savitri" was also standing nearby, since she has said that "esjs mij cyohj vkdj fxjk rc eq>s tkx vkbZ] esjh vka[k [kqyh rks lkfo=h Hkh esjh pkjikbZ ds ikl gh [kM+h Fkh", likewise, PW-5 Sultan, father of deceased, has also said that when he awakened on the cry of his wife, then he saw his injured son Balveer was lying upon the knee of his mother and near to the cot "Savitri" was also standing, whereas alleged weapon of assault, kassi, is stated to have been recovered from outside of the sleeping area from place "L", which is 20 feet away towards west south of the cot, but the cot (pkjikbZ) of the mother Smt. Bela has been stated to be in northern side at place "7", which is opposite direction of the place from where recovery of the weapon is stated as per Ex.P/6 spot map and its description as mentioned (8 of 14) [CRLA-130/1989] in Ex.P/19.
Ex.P/19 has also got a description that near the spot "L", feminine urine discharge was detected, if this version of the prosecution is accepted, then the statements of both "Bela" and "Sultan" becomes wrong because both have said that when they woke-up, then Savitri was there beside her injured husband, then there appears to be no reason allegedly for going out and throwing away or concealing the weapon there or occasion to discharge urine in open area.
11. Smt. Bela and Sultan have accepted that Savitri was standing there near to injured, when they woke-up, if that is the verity, then how blood has been detected in nearby standing "narma crop" since Ex.P/19, description relating to spot sketch, goes to show "nf{k.k esa Qly ujek eqLrxhl gS tks djhc 3 ½ &4 QqV mWapk gSA dqN NhaVs [kwu ds ujek ds iRrksa ij Hkh yxs gSa", which indicates something otherwise than the story of the prosecution.
12. Ex.P/19 discloses that a distance of 80 feet was there between the cot of deceased and that of his mother and the story of the prosecution rests on the version that deceased got up after the stroke and went up to the cot of his mother and narrated her the alleged incident, which is not reliable at all, on dint of the medical evidence, because the medical evidence as discussed above, goes to show that carotid vessels, several nerves were severed and fifth cervical vertebra was cut and such an injury may not give strength or occasion to walk up to 80 feet and narrate anything pertaining to the cause of (9 of 14) [CRLA-130/1989] such brutal injury.
13. According to Ex.P/10, alleged weapon of assault, kassi, has been shown to be recovered 23 feet away from the spot of injury from a khaala (hiding spot) and thanedar sahab had approached firstly at that place, where kassi was lying, but Sultan, father of the deceased has said that, "fnukad 2-9-87 dks cjoDr ekSdk eqykfgtk ,d dLlh [kwu vkyqnk , and it has also been said that, "iqfyl us ?kVuk LFky ds ikl iM+h dLlh dks cjken dh FkhA".
14. PW-7 Sanwal Ram has also said that Sona Ram had informed him that somebody had blown kassi upon Balveer so, come along to the Dhani.
15. PW-1 Smt. Bela, wife of Sultan and step mother of deceased, has specifically said that Balveer did not have any talk with his father after his awakening and Balveer did not say anything to his father, which rather goes to indicate that deceased was not able to utter or narrate anything.
16. PW-3 Rajendra has also said that Sultan and Sher Singh gave him a call in mid-night and asked him to wake up since somebody gave injuries to Balveer.
Had there been any truth regarding injuries having been caused by the wife of the deceased, then this would have certainly been narrated to this witness as well.
17. On the one hand, Smt. Bela says that Balveer did not convey anything to his father regarding the cause of injuries, Sona Ram PW-6, asserts himself to be the brother of Sultan, though the parental name of this witness is Arjun Ram, which is (10 of 14) [CRLA-130/1989] other than the father's name of Sultan, which is Harchand, has said that his dhani is situated two bighas away from the dhani of Sultan and on hearing chaos from the side of dhani of Sultan, he ran towards Sultan's dhani, where he found Balveer was lying in the lap of his mother, his neck was cut, blood was gushing out, he enquired from Balveer what happened, then he said that "raand" of mine (cursed widow) has cut my neck by kassi and by calling raand, he denoted and indicated his wife, whereas Sultan has said that Savitri told him that she witnessed two persons running away after injuring Balveer and he has said that after his arrival, Sohna Ram and Sher Singh came, then they went to the dhani of Harsukh Jat to fetch a "vaid" but nothing of this kind of revelation has been narrated by Sultan that deceased uttered anything alike.
18. Scrutiny of the evidence also shows that allegedly clothes of Smt. Bela were also tainted by blood but prosecution has not taken those clothes nor "vaid" Ramchandra, who is stated to be brought from nearby through a conveyance and who allegedly gave band-aid (first aid) to the injured/deceased, has been produced by the prosecution to establish the truth.
19. "Smt. Bela", step mother of deceased, has candidly asserted that "Savitri" was having affectionate relations with her husband and she had come 13 days ago of the incident and till then both were having good and affectionate relations, similarly, "Sultan" has also said that he did not observe any discontent or strife between Balveer and his wife, right from their marriage onward.
20. Accused-appellant "Smt. Savitri" has explained in (11 of 14) [CRLA-130/1989] her statements made under Section 313 of Cr.P.C. that she did not kill her husband but two strangers gave excision upon him and she has further said that, "cyohj dks esjh lkl us ejok;k FkkA eSa 9 eghus igys llqjky vkbZ rc esjh lklq o cyohj ds vkil esa jkSyk FkkA tks tsoj ds ckjs esa FkkA esjh lklq cyohj ls esjk tsoj ekaxrh Fkh tks mlus ugha fn;kA esjh lklq us fdlh vKkr O;fDr;ksa ls esjs ifr dk dRy djok fn;kA".
21. A suggestive interrogatory has also been put by the defence to Smt. Bela and she has replied that, ";g ckr xyr gS fd eSus cyohj dk fnxj vknfe;ksa dk dRy djok;k gks vkSj vius cpko esa lkfo=h dks bl eqdnes >qBk Qalk fn;k gksA"
22. Smt. Bela has also said that marital jewelry was bestowed to Savitri by her husband Sultan and she has also said that she cannot say reason of killing of Balveer by "Savitri".
23. Upon considering the entire aforediscussed evidence and contradictions, it is apparent that prosecution has miserably failed to prove its case beyond reasonable doubt.
24. Admittedly, the couple was not having strained relations, they were having affectionate and cordial relations, none ever seen struggling them. The kind of extrajudicial confession by the accused or alleged revelation of his injury by the victim have not been dealt and divulged in the first information report. Had there been any such truth, then it would have certainly appeared in the first information report, which is lodged rather against anonymous assailants.
25. Gravity of the injury on the vital neck part of the body by which fifth vertebra of cervical was cut, which too got severed along with "carotid vessel" and cutting of several (12 of 14) [CRLA-130/1989] significant arteries deep into the muscles, would have not given occasion to a fragile bodied victim (per photo) the victim to tread a span of 20 feet and revealing anything to her mother that he was given blows allegedly by his wife.
26. Injuries found on the body of the deceased and testimony of PW-8 Dr. Mahaveer Prasad also establishes that the nature of the injuries was "formidable" and would have given want of supply to the brain resulting into unconscious.
27. Investigating agency has also not revealed truth as to what prompted them to take down supplementary statements on the same day, timings of which are also vitally contradictory. Spot map and its description, as dealt above, also shrouds the story of the prosecution with unexplained mystry.
28. As such, nothing is there to indicate that the prosecution has succeeded in proving its case beyond realms of reasonable doubt and story of the prosecution is highly doubtful.
29. Conclusively, it is clear that prosecution has failed to establish its case and there is no reliable evidence to connect the accused-appellant with the crime. "Motive" also lacks. A couple, having cordial relations, could never abruptly behave abnormally as alleged.
30. In Narendra Singh & Anr. Vs. State of madhya Pradesh [(2004) 10 SCC 699], the Hon'ble Apex Court has recognized presumption of innocence as a human right and has gone on to say that:
"30. It is now well settled that benefit of doubt belonged to the accused. It is further trite that suspicion, however grave (13 of 14) [CRLA-130/1989] may be, cannot take place of a proof. It is equally well settled that there is a long distance between 'may be''and 'must be'."
31. In Baijnath & Ors. vs. State of Madhya Pradesh, 2017 1 SCC 101, Hon'ble the Supreme Court has held that in the cases of deficiencies of proof, benefit would be available to the person charged and in Narendra Singh & Another v. State of M.P., (2004) 10 SCC 699, the Hon'ble Apex Court has also held that in event of there being two possible views, one supporting the accused should be upheld and Hon'ble the Supreme Court has recognized presumption of innocence as a human right.
32. For the reasons deliberated and discussed as aforesaid, we are of the view that learned trial court has committed wrong in holding the accused guilty and the findings impugned are liable to be set aside.
33. Therefore, the judgment of the learned trial court is quashed and set aside and the accused-appellant Savitri is acquitted. She is on bail, so she does not require to surrender, her bail bonds are discharged.
The appeal stands allowed in the aforesaid terms. Keeping in view, however, the provisions of Section 437A Cr.P.C., the accused appellant Savitri is directed to forthwith furnish a personal bond in the sum of Rs.50,000/- 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 Special Leave Petition against the judgment or for grant of leave, the appellant Savitri, on receipt of notice thereof, shall appear (14 of 14) [CRLA-130/1989] before Hon'ble the Supreme Court.
Record of the trial court be sent back expeditiously along with a copy of this judgment. (G.R. MOOLCHANDANI)J. (GOPAL KRISHAN VYAS)J. /skm/