Rajasthan High Court - Jaipur
Islam vs State Of Raj Asthan Through Pp And Anr on 10 April, 2012
Author: Dalip Singh
Bench: Dalip Singh
In the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur O R D E R 1. D.B. Criminal Leave to Appeal No.32 of 2012 State of Rajasthan VERSUS Fakroo son of Shri Juharoo AND 2. D.B. Criminal Appeal No.1165 of 2011 Islam son of Shri Bhoballi VERSUS State of Rajasthan and Another Date of Order ::: 10th April, 2012. Hon'ble Mr. Justice Dalip Singh Hon'ble Mr. Justice S.S. Kothari Mr. J.R. Bijarnia, Public Prosecutor for the State
Mr. Biri Singh Sinsinwar, Senior Counsel, assisted by Mr. Laxmikant Shandilya, Counsel for the appellant-complainant Islam.
*** Oral : [Per Hon'ble Mr. Dalip Singh, J.].
These two appeals have been preferred by the State of Rajasthan as well as by the informant Islam, who is the brother of the deceased Wahid being aggrieved by the judgment dated 01.10.2011 passed by the learned Additional Sessions Judge No.1 Deeg, District Bharatpur in Sessions Case No.11 of 2010 by which the accused-respondent Fakroo son of Shri Juharoo by caste Mev, resident of Kalyanpura, Police Station Deeg, District Bharatpur has been acquitted by the learned trial Court from the offence under Sections 302, 147, 149 and 120-B I.P.C.
Facts, in brief, are that an F.I.R. came to be lodged by PW-2 Islam, which is Exhibit-P/1, on 05.10.2009 at Police Station Deeg, District Bharatpur alleging therein that on the night of 2nd & 3rd of October, 2009 at about mid-night his brother Wahid, the deceased and his wife Smt. Asmina, both were sleeping in their room. In the intervening night at about 12-01 Asmina came out shouting, then he and his family members went inside the room and saw that Wahid was lying dead on the cot. It is alleged that they inquired from Asmina about the cause of death of Wahid on which she said that Wahid died all of a sudden. It is further stated that they were not satisfied with her reply and they informed Asmina's family at her Village Baghola by telephone that they should reach immediately. On being informed Sattar, Suban Khan, Munshi, Samsu, Salim etc. came from Baghola and they had a talk with Asmina separately. Thereafter, before all the people, who had gathered and the Panchas of community Asmina stated that Wahid has died and accepted that he died due to her fault and she was responsible and she requested everyone to pardon her mistake. On this assurance on 03.10.2009 deceased Wahid was cremated. It is further alleged that after the cremation people inquired from Asmina, including Rujdar, Ayub, Yunush, Chhutta, and Kursaid. Asmina is reported to have told the Village Panchas and these persons that she had administered poison to deceased Wahid in the milk and this she had done in collusion with Moharam and Khusshi and his younger brother, as a result of which he became unconscious and thereafter they strangulated Wahid by putting an electric wire round his neck and murdered him. It was further stated that Asmina told the gathering that she was afraid of so many people being there and so she was unable to disclose these facts at the time when Wahid was lying dead before the cremation.
On this report, a Murg report bearing No.27 of 2009 under Section 174 Cr.P.C. was registered and the investigation was carried out by the A.S.I. Shri Prabhudayal. Shri Prabhudayal, A.S.I. submitted his report on 20.10.2009 and as a result thereof an F.I.R. bearing No.752 of 2009 for the offence under Section 302 I.P.C. was registered and investigation started.
On the report of investigation, the accused Asmina was arrested and so also the present accused-respondent Fakroo. They were produced before the learned Magistrate and after challan was filed, the charges under Sections 147, 302, 302/149 and 120-B I.P.C. came to be framed against the accused-respondent Fakroo and so also Asmina.
In the instant case against other accused-persons investigation was kept pending under Section 173 (8) Cr.P.C. The trial of the two accused; Fakroo and Asmina was conducted, as many as 19 prosecution witnesses were examined, statements of the accused under Section 313 Cr.P.C. were recorded and from the side of the defence six witnesses were examined.
The learned trial Court after considering the evidence on record acquitted the accused-respondent Fakroo while convicting the accused Asmina.
Admittedly, in this case the case of the prosecution is based solely upon circumstantial evidence, as there is no direct evidence or eye witness of the offence.
So far as the case against accused-respondent Fakroo is concerned, the sole evidence against him is that of the circumstance of last seen.
The learned trial Court has after considering the evidence of the prosecution witnesses disbelieved the same on several grounds.
The prosecution witnesses, who stated that they had seen Fakroo, along with other persons having come to the Village on the pretext of surveying area on the ground that he had come to buy certain buffalos were disbelieved as the Village where Fakroo had come and where Asmina and deceased Wahid were residing is not new to him, since his mother hails from the same Village and he is known to all the persons. The theory that accused-respondent was seen talking to the accused Asmina has also been disbelieved on the ground that the place from where the prosecution witnesses are said to have seen the two accused-persons talking, which is the well, is not visible from the house from where the prosecution witnesses are reported to have seen the two accused talking and allegedly conspiring to eliminate the husband of Asmina.
The learned trial Court more importantly found that the prosecution case itself was doubtful and disbelieved the testimony of the prosecution witnesses, more particularly PW-2 Islam, inasmuch as the fact that the report was not lodged till 05.10.2009 when they were not satisfied with Asmina's explanation on the very first day i.e. 03.10.2009 and decided to cremate the body of Wahid in the presence of all the Villagers and did not inform the Police when the Police Chowki was only 800 meters away from the residence of Asmina and Wahid.
The learned trial Court has, therefore, found that the statement of these witnesses in the facts and circumstances creates a serious doubt about Asmina having admitted her guilt in the presence of all the persons and begged to be forgiven. In these circumstances cremating the deceased without reporting to the Police when there was admittedly foul play does not stand to reason and there filing an F.I.R. after two days.
Even the theory with regard to the deceased having first been administered poison along with the milk and thereafter the prosecution case of strangulation by the wire/rope has also been disbelieved as there is no corroborative medical evidence in the P.M.R. or the doctor who conducted the same, which gives rise to doubt the prosecution story narrated by the witnesses regarding the admission made by Asmina before them in the presence of the Villagers as to how Wahid was murdered by first administering poison and then strangulating him.
Taking the totality of the facts and circumstances of the case, in the instant case so far as the case of present respondent-accused Fakroo is concerned, the learned trial Court found that there was no credible evidence to connect the accused-respondent Fakroo with the crime based upon the prosecution evidence led in this case.
We have considered the entire facts and circumstances and the submissions made before us.
Learned counsel for the claimant-appellant-Islam submits that on the basis of the evidence of PW-2 Islam, PW-3 Imran and PW-4 Kursaid the involvement and the presence of the accused-respondent Fakroo so far as the evidence of last seen is concerned is established.
We have considered the aforesaid statements and find ourselves unable to agree with the submissions made by the learned counsel for the appellant in this behalf.
The learned trial Court has discussed the entire evidence in this case on the circumstance of last seen (regarding Fakroo) and we find ourselves in agreement so far as the findings arrived at by the learned trial Court are concerned and the manner in which it has dealt with the case of the accused-respondent Fakroo and acquitted him.
We may add here that even the Investigating Officer PW-19 Aas Mohammad, who conducted the investigation in this case has also expressed his doubt about the involvement of the accused-respondent Fakroo in the present case in his statement in Court that there is no credible evidence against the respondent Fakroo.
In the facts and circumstances, therefore, having considered the evidence on record and the submissions made at the bar by the learned Public Prosecutor while arguing leave to appeal and by the learned counsel for the appellant [victim], we find no merit in both; the appeal and the application for leave to appeal.
We may add here that any theory said in our above order shall not affect the rights of the parties including the co-accused so far as their case is concerned.
Accordingly, both the appeals are, hereby, dismissed.
[S.S. Kothari] J. [Dalip Singh] J. Ashok/ Certificate - All corrections have been incorporated in the judgment/order being emailed. Ashok Kumar Songara/P.A.cum J.W