Rajasthan High Court - Jaipur
Mahaveer Singh vs State on 17 September, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN D.B. Criminal Jail Appeal No.797/2006 Mahaveer Singh Vs. State of Rajasthan through Public Prosecutor
Date of Order ::: 17.09.2013 Present Hon'ble Mr. Justice Mohammad Rafiq Hon'ble Mrs. Justice Nisha Gupta Shri Ajay Gupta, counsel for accused-appellant Shri Javed Choudhary, Public Prosecutor #### //Reportable// By the Court (Per Hon'ble Mr. Justice Mohammad Rafiq):-
This appeal has been preferred by accused Mahaveer Singh from jail being aggrieved by judgment dated 26.03.2004 of learned Additional Sessions Judge (Fast Track) No.2, Jhunjhunu, in Sessions Case No.97/2003 (88/2003) convicting him for offence under Sections 302 and 201 of the Indian Penal Code. For offence under Section 302 IPC, he was sentenced to undergo life imprisonment with fine of Rs.200/-. For offence under Section 201 IPC, he was sentenced to undergo three years rigorous imprisonment with fine of Rs.200/-. In default of payment of fine, he was ordered to further undergo ten days simple imprisonment for each offences. Both the sentences were ordered to run concurrently.
Facts of the case are that a written-report (Exhibit P-1) was submitted by one Smt. Gend Kanwar at Police Station Udaipurwati, District Jhunjhunu, on 27.11.2002 alleging that her daughter Ichraj Kanwar was married to Mahaveer Singh S/o Shri Amar Singh, R/o village Lagwada, District Nagaur, on 26.05.1997. Her daughter Ichraj Kanwar used to be harassed by her husband Mahaveer Singh, father-in-law Amar Singh, elder brother-in-law Gopal Singh (Jeth), elder sister-in-law Kela Kanwar (Jethani) for not bringing sufficient dowry. They used to demand a sum of Rs.50,000/- in cash, gold jewellery viz. 'baju' and 'punchi', coloured television and freeze etc., and teased her of such demand. Whenever Ichraj Kanwar would visit her parental house, she would narrate the story of harassment at the hands of her in-laws. The complainant Gend Kanwar, her husband and other relatives went to the village of her in-laws and requested them not to harass Ichraj Kanwar. For sometime things become normal, but again they started persecuting Ichraj Kanwar on demand of dowry. She was subjected to beating and ultimately driven out of the home about one month ago. Ichraj Kanwar came to her parents' house at village Barwa. Mahaveer Singh came to Barwa on 08.11.2002. He wanted to take Ichraj Kanwar with him. He assured the complainant and her family that he would treat Ichraj Kanwar with due respect and would not harass her. On his assurance, Ichraj Kanwar and her one year old daughter Pinku Kanwar were sent with Mahaveer Singh. After few days, the complainant and her husband came to know that Mahaveer Singh did not reach his native village Lagwada. The complainant had every doubt that something untoward might happen to her daughter Ichraj Kanwar and grand daughter Pinku Kanwar.
On the basis of said written-report, the police registered regular First Information Report being F.I.R. No.339/2002 for offence under Sections 498A and 406 IPC and Section 4 of the Dowry Prohibition Act. Accused was arrested by the police at Railway Station Sikar at 10.15 AM on 01.04.2003 vide arrest-memo Exhibit P-20. Accused gave information under Section 27 of the Evidence Act at 10.30 am on the same day vide Exhibit P-21 that he can get dead-bodies of his wife Ichraj Kanwar and daughter Pinku Kanwar recovered from a well situated at a distance of about four kilometers from Mandawa on the road leading to Fatehpur. The dead-bodies were recovered on the same day. The offences of Sections 302 and 201 of the IPC were also added to the already registered FIR. Challan against accused was finally filed. Learned trial court framed charges against the accused for offence under Sections 498A, 406, 304B, 302 and 201 of the IPC. The prosecution produced 16 witnesses and got 21 documents exhibited. The defence did not produce any witness, though got 8 documents exhibited. Hence the appeal.
Learned trial court, after conclusion of the trial, convicted and sentenced the accused-appellant in the manner indicated above.
We have heard Shri Ajay Gupta, learned counsel for the accused-appellant, and Shri Javed Choudhary, learned Public Prosecutor.
Shri Ajay Gupta, learned counsel for the accused-appellant, argued that the appellant has been falsely implicated in the present case inasmuch as learned trial court has completely overlooked the defence set up by him in his examination under Section 313 Cr.P.C. that in fact the accused has been falsely implicated in the present case because his in-laws' demanded money from him for arranging the marriage of his sister-in-law, which he could not manage. He did not take his wife Ichraj Kanwar and daughter Pinku Kanwar with him, and they were with the complainant. The complainant never informed accused about their disappearance. He loved his wife and daughter and has not murdered them. Learned counsel argued that the trial court has based its judgment on surmises and conjectures and has been mostly guided by emotions rather than by law. There is no evidence of last seen. Recoveries made at the instance of accused do not connect him with the crime. In the first instance, the story that was set up by the informant was that deceased Ichraj Kanwar was beaten and driven out of the house one month ago and thereafter the complainant sent her with the accused on 08.11.2002 only on the assurance that he would treat her properly but none of the prosecution witnesses have stated so in their statements before the court.
Shri Ajay Gupta, learned counsel for the appellant argued that in the FIR there is no mention of the fact that deceased had carried clothes and jewellery with her and therefore recognition of those articles would not have any bearing on the present case. No evidence has been produced by the prosecution to show as to whether the Investigating Officer made any interrogation or enquiries from the mother, father, elder brother and his wife about the deceased and her daughter, after they are said to have left the complainant's house on 08.11.2002 till the accused was arrested on 01.04.2003. The fact that for five months no investigation was made, clearly proves that the complainant had no doubt on the accused and only because they could not find anyone else, accused has been framed. What has been recovered on the basis of information under Section 27, purported to have been given by accused vide Exhibit P-21, is only skeleton and not the dead-bodies. It is not proved that the skeletons were those of Ichraj Kanwar and daughter Pinku Kanwar. Dr. Rajveer Singh (PW-12), Medical Officer, in his statement has stated that it was difficult to determine how old the skeletons were. In absence of definite evidence, therefore, the trail court erred in law in accepting that these skeletons were that of the deceased.
Shri Ajay Gupta, learned counsel for the accused-appellant, argued that another information said to have been given by accused under Section 27, to the Investigating Officer on 03.04.2003 regarding jewellery of the deceased, is completely fabricated. If accused allegedly pushed the deceased into the well thereby murdered her, there was no question of his retaining her jewellery. Such recovery also therefore cannot be read against the accused. The information under Section 27 (Exhibit P-6) is said to have been given at 8.00 PM on 03.04.2003, whereas the recovery of jewellery articles is shown to have been made three days thereafter on 06.04.2003 from Kishan Soni (PW-9), proprietor of M/s S.N. Jewellers. There is no explanation why when accused had already given information under Section 27 to the police on 03.04.2003, the recovery was made with delay of three days. Investigating Officer Narain Singh (PW-11) has not given any explanation for this delay, which clearly proves that all the documents are fabricated.
Shri Ajay Gupta, learned counsel for the appellant, argued that the very fact that the accused had two daughters, goes to show that the husband and wife happily lived together. It is argued that Anil Kumar (PW-3), who had taken the dead bodies out of the well, has stated that purse and 'taabij' (talisman) were also found with the dead-bodies but no seizure-memo of talisman was prepared. Harun Ali (PW-5) and Hari Prasad (PW-8) have not supported the prosecution case and were declared hostile. Ramesh (PW-7), who is a witness of recovery (Exhibit P-4) has stated that he was made to sign the memo only. Kishan Lal Soni (PW-9), from whose shop the jewellery articles of the deceased are said to have been recovered, has stated that no written report was prepared about the jewellery items. No reference of jewellery articles was made in the first information report.
It is therefore prayed that the appeal be allowed and the accused-appellant be acquitted of the charges.
Per contra, Shri Javed Choudhary, learned Public Prosecutor, opposed the appeal and submitted that deceased Ichraj Kanwar and Pinku Kanwar were lastly seen with the accused-appellant, a fact which has been proved by the statements of Santosh Kanwar (PW-1), Gend Kanwar (PW-2), Raghuveer Singh (PW-4), Mahabux Singh (PW-6), Dhukal Singh (PW-13) and Surendra Singh (PW-14). These witnesses also proved that accused-appellant and his family used to maltreat deceased Ichraj Kanwar. They used to harass her on demand of dowry and that only about a month ago she was subjected to beating and they were driven out of the house. It is proved from their evidence that when deceased Ichraj Kanwar lastly left the house of her parents, she was wearing petticoat and blouse of white colour and 'odhani' of yellow and brown colours and inner of red colour. She was also wearing ornaments i.e. 'rakdi', ear rings (surliye) and paijeb'. The recovery of dead bodies from the well has been proved by Anil Kumar (PW-3), Raghuveer Singh (PW-4), Dhukal Singh (PW-13) and Surendra Singh (PW-14). No jewellery articles were found on dead body of Ichraj Kanwar but the same were recovered from Kishan Soni (PW-9), the proprietor of M/s S.N. Jewellers. Raghuveer Singh (PW-14), brother of deceased Ichraj Kanwar, has explained why in the first instance the report was not lodged for murder, by stating that at that time they did not apprehend that deceased could have even been murdered and therefore the reference of jewellery was not made in the FIR, that she was wearing when she left her parental house.
Shri Javed Choudhary, learned Public Prosecutor, argued that the evidence proved that one of the teeth of Ichraj Kanwar was broken. The skeleton of the dead-body also did not have one teeth as per the available evidence. The witnesses also identified the frock which deceased Pinku Kanwar (daughter of deceased Ichraj Kanwar and accused-appellant) was wearing at the relevant time. Santosh Kanwar (PW-1) and Kishan Soni (PW-9) have proved that jewellery articles recovered vide Exhibit P-4 were in fact sold by the accused. Chain of circumstances against the accused is therefore complete which leads no doubt that it was none other who murdered deceased Ichraj Kanwar and her daughter Pinku Kanwar. The chain of circumstances against the accused-appellant is so complete as to rule out every single hypothesis that may be compatible with his innocence. It is therefore prayed that the appeal be dismissed.
We have given our anxious consideration to rival submissions and perused the material on record.
The most significant and strongest circumstance against the accused-appellant is that it was he who had taken deceased Ichraj Kanwar and Pinku Kanwar with him on 08.11.2002 and thereafter they were not seen. Gend Kanwar (PW-2), mother of deceased Ichraj Kanwar, has proved that accused-appellant used to maltreat deceased Ichraj Kanwar for dowry. She was last seen with accused Mahaveer Singh three days after deepawali. When Mahaveer Singh had come to Barwa to fetch Ichraj Kanwar. He assured that he would take Ichraj Kanwar to Fatehpur and would not beat her. About 12-13 days thereafter, Amar Singh, father of accused Mahaveer Singh, came to their village Barwa with his daughter and enquired about Ichraj Kanwar and Pinku Kanwar. Informant told them that they had gone with Mahaveer Singh to Fatehpur. Amar Singh then left saying that he would go to Fatehpur and would inform them. When he did not give any information, this witness (Gend Kanwar) with Santosh Kanwar (PW-1) and Ganga Singh, went to Fatehpur. They went to the house where the accused was living as tenant. The house in which the accused was living was of a man, who was 'brahmin' by caste. That family told that accused had left in the morning after taking meal and would return in the evening. The landlord told them that Ichraj Kanwar was not there and that Ichraj Kanwar and Pinku Kanwar did not come with the accused. Gend Kanwar (PW-2) then approached the Police Station, Fatehpur, to lodge the report, but the police did not take the report, therefore, they went to Police Station Udaipurwati and lodged the FIR. She has proved that last time when deceased Ichraj Kanwar left their house, she was wearing petticoat and blouse of white colour and 'odhani' of yellow and brown colour. She was also wearing jewellery i.e. 'rakdi', year ring and 'paijeb'.
Anil Kumar (PW-3) is the person who had descended down the well to recover the dead bodies. He has stated that when he descended down the well with a basket, he found that dead bodies were separated into two parts, that is the upper part was separated from the lower part. The dead bodies were of a woman and a child girl. The white petticoat, blouse and odhani were visible on the dead-body of woman and a frock of green colour was visible on the dead body of child girl. They were put in the basket and taken out. There was a pair of chappal (slippers) of black colour. Small purse and talisman were also there. The police did not get a clue about the place where deceased Ichraj Kanwar and Pinku Kanwar murdered till they got the information from the accused. The dead bodies were recovered on the very same day when the accused gave the information. Recovery of dead bodies coupled with the fact that the accused was last seen with the deceased Ichraj Kanwar and Pinku Kanwar wearing the same clothes and ornaments, as told by the witnesses, clearly point to the guilt of the accused.
Raghuveer Singh (PW-4) also accompanied Gend Kanwar (PW-2) to the house in which accused was residing. He has proved that landlord, who was 'brahmin' by caste, informed them that Ichraj Kanwar did not accompany the accused and the he came alone. He has proved that Ichraj Kanwar was being subjected to beating by the accused and his family and even then he suggested not to rush to the police station and tried to patch up her husband and in-laws. Mahabux Singh (PW-6), father of deceased Ichraj Kanwar, has also proved that deceased Ichraj Kanwar and her daughter Pinku Kanwar, went with the accused on 08.11.2002. When she came from her in-laws, they found injury marks on her right hand. The accused assured them that he would not maltreat her and that he would take her to the temple of do-janti-balaji at Fatehpur and keep her at Fatehpur in the rented house. Thereafter she was not seen. Ramesh (PW-7) and Hari Prasad (PW-8) have proved the recovery-memo (Exhibit P-4) whereby recovery of one pair of earring (patte), gold and one 'rakdi' of gold was made from the shop of M/s S.N. Jewellers, proprietor of which was Kishan Lal Soni (PW-9). Kishan Lal Soni has also stated that it as accused Mahaveer Singh who came to sell those jewellery articles and that he gave a sum of Rs.6,400/- to him in lieu thereof. Those articles were recovered from his shop by the police on 06.04.2003 vide Exhibit p-4.
Hawa Singh (PW-10), who was head constable deployed as 'maalkhana' in-charge at Police Station Udaipurwati, has proved the deposit of one pair of chappal recovered with the dead body and two sealed packets marked as A and B on 03.04.2003 containing the bones of skeletons of deceased Ichraj Kanwar and Pinku Kanwar. He has proved entry of packet Exhibit P-5 in the 'maalkhana' register for sending them to Forensic Science Laboratory. Narain Singh (PW-11), who was posted as Deputy Superintendent of Police, Nawalgarh, has proved all the steps of investigation and prepare of memos. Dr. Rajveer Singh (PW-12), who conducted postmortem of deceased Ichraj Kanwar and Pinku Kanwar, has proved their postmortem reports respectively Exhibit P-10 and Exhibit P-11. Although it is true that this witness has stated that dead bodies were in the shape of skeleton and that exact time and cause of death was difficult to determine, that does not however in any manner affect the prosecution case because the circumstances of last seen and also the recovery of clothes nd other articles of the deceased with their dead bodies and also the recovery of ornaments of the deceased from Kishan Soni, Proprietor of M/s S.N. Jewellers, which were proved to be of the deceased, make the chain of circumstances against him so complete as to rule out every single hypothesis that may be compatible with his innocence.
Raghuveer Singh (PW-14), brother of deceased Ichraj Kanwar, has explained why in the first instance the report was not lodged for murder, by stating that at that time they did not apprehend that deceased could have even been murdered and therefore the reference of jewellery was not made in the FIR, that she was wearing when she left her parental house. The evidence proved that one of the teeth of Ichraj Kanwar was broken. The skeleton of the dead-body also did not have one teeth as per the available evidence. The witnesses also identified the frock which deceased Pinku Kanwar (daughter of deceased Ichraj Kanwar and accused-appellant) was wearing at the relevant time.
Statements of Gend Kanwar (PW-2), mother of deceased Ichraj Kanwar and Mahabux Singh (PW-6) that deceased Ichraj Kanwar and her daughter Pinku Singh left their house with accused Mahaveer Singh. That time deceased Ichraj Kanwar was wearing petticoat and blouse of white colour and 'odhani' of yellow and brown colour. She was also wearing 'rakdi', earring and 'paijeb'. The witnesses identified all these articles, namely articles no.1 to 8 to be that of deceased. The memo of identification of property (Exhibit P-19) proved that the articles, namely, one pair of 'paijeb' of sliver metal, 'rakdi' made of gold, earring (patte) made of gold, which were recovered from Kishan Soni, were identified by Gend Kanwar and Mahabux Singh, parents of deceased Ichraj Kanwar, proceedings whereof were conducted by the then Tehsildar of Udaipurwati on 01.05.2003. Dhukal Singh (PW-13) has also supported the statements of Gend Kanwar, Mahabux Singh and Surendra Singh in this respect. Gend Kanwar and Mahabux Singh both have stated in their statements before the court that they identified said articles. All the circumstances against the accused especially the circumstances of last seen, recovery of dead bodies at his instance and recovery of jewellery of the deceased from M/s S.N. Jewellers and statement of Kishan Soni that those jewellery article were sold to him by the accused-appellant are sufficient to connect him with the crime but the accused has failed to give any explanation muchless any satisfactory explanation in his examination under Section 313 Cr.P.C.
The Supreme Court in Sunil Clifford Daniel Vs. State of Punjab (2012) 11 SCC 205, has held that it is obligatory on the part of accused while being examined under Section 313 Cr.P.C. to furnish some explanation with respect to incriminating circumstances associated with him. The court must take note of such explanation even in a case of circumstantial evidence to decide as to whether or not chain of circumstances is complete. When attention of accused is drawn to such circumstances that inculpate him in relation to commission of crime and he fails to offer an appropriate explanation or gives a false answer with respect to same, the said act may be counted as providing a missing link for completing chain of circumstances. The accused-appellant in the present case has also not given any explanation whatsoever as regards the aforesaid incriminating circumstances put to him while his examination under Section 313 Cr.P.C.
It is trite that in a case of circumstantial evidence there must be complete chain of evidence which should lead to conclusion that the accused was the only person, who could have committed offence and none else. Each of circumstances that is proved against the accused should form a chain so complete so as to rule out every other hypothesis, which may be compatible with innocence of the accused. The prosecution by producing number of witnesses has proved the factum of last seen, motive and recovery against accused-appellants and their testimony stands on solid ground. Last-seen, recovery and motive are major features against the appellant. Prosecution has been able to prove all these three circumstnaces independently against the appellant beyond reasonable doubt, which form a complete chain of circumstance bringing home his guilt.
In view of the above discussion, we find the chain of circumstances against the accused-appellant so complete as to rule out every single hypothesis that may be compatible with his innocence and point the finger of suspect only to the accused-appellant and none else, who could have murdered deceaed Ichraj Kanwar and her daugther Pinku Kanwar.
In the result, the appeal fails and the same is dismissed.
(Nisha Gupta) J. (Mohammad Rafiq) J. //Jaiman//
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Giriraj Prasad Jaiman PS-cum-JW