Rajasthan High Court - Jodhpur
Smt. Paras vs State on 18 April, 2013
Author: Govind Mathur
Bench: Govind Mathur
(1)
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
JUDGMENT
D.B. CRIMINAL APPEAL NO.758/2004
Smt. Paras
Versus
The State of Rajasthan
Date of Order :: 18.04.2013
PRESENT
HON'BLE MR. JUSTICE GOVIND MATHUR
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Mr. Jitendra Ojha for the appellant
Mr. K.R. Bishnoi - Public Prosecutor
BY THE COURT (PER AHLUWALIA, J.) :
The instant appeal has been instituted by Smt. Paras to assail the judgment of conviction dated 14.07.2004 rendered by Additional Sessions Judge (Fast Track) No.1, Sirohi, whereby she was convicted for an offence under Section 302 IPC. Vide a separate order of even date, the appellant was sentenced to undergo life term imprisonment and to pay a fine of Rs.1000 and in default thereof to undergo rigorous imprisonment for one year.
Mrs. Seeta Devi (P.W.14) on 03.01.2004 at about 11.15 p.m. made a statement (Ex.P/15) before the Station (2) House Officer, Police Station Barloot stating therein that she alongwith her family resides in village Warada. Her elder son Raj Bharati had died six years ago in an accident. Another son Ramesh was running a shop at Baroda. He returned from there the day before the occurrence. On 03.01.2004 at about 9.00 p.m., he retired to sleep alongwith his wife Paras, the present appellant, in the room on the first floor of the house. At about 10.30 p.m., Paras, wife of Ramesh, came downstairs and raised a shriek that Ramesh has died. Seeta Devi alongwith her elder daughter-in-law Geeta went upstairs and found that Ramesh was lying dead in the room near the door. He was having injuries on the neck and blood was splashed on the floor. She further stated that her son Ramesh was having strained relations with his wife Paras. She raised a suspicion that Ramesh has been killed by his wife, the present appellant, Paras.
The abovesaid FIR was investigated. After completion of the investigation, a charge-sheet under Section 173 CrPC was submitted against the present appellant. She alongwith the case was committed to the Court of Sessions and the trial was entrusted to the Court of Additional Sessions Judge (Fast Track) No.1, Sirohi.
The appellant was charged for the offence under (3) Section 302 IPC. The charge stated that on 03.01.2004, in between 9 to 10 p.m., the appellant had murdered her husband Ramesh in village Mauja Warada by causing injuries on head, jaw, neck, face and hands with a Kulhari, thus, the appellant was charged for culpable homicide amounting to murder punishable under Section 302 IPC. The appellant pleaded not guilty and claimed trial. The prosecution commenced evidence.
Hanuman Singh stepped into the witness box as P.W.1. He stated that on 08.01.2004 he was posted as Constable in Police Station Barloot and was incharge of Maalkhana. He deposed regarding deposit of the case property and their safe custody. No meaningful cross- examination was extended. Thanaram (P.W.2) is also a police Constable. He deposited sealed packets with P.W.1 Hanuman Singh, who was incharge of Maalkhana. This witness was examined to prove link evidence. Bheru Singh (P.W.12) was also examined to prove the link evidence. PW.7 Uka had prepared the scaled site plan of the place of occurrence on the bidding of the police officers. Bhanwar Singh (P.W.4) and Ukaram (P.W.5) had identified the dead body during the inquest proceedings.
Dr. Dinesh Kumar (P.W.3) had conducted autopsy (4) on the dead body of Ramesh on 04.01.2004. He had found six incised injuries on the person of deceased Ramesh. Injury No.5 and 6 were on both hands, whereas injury No.1 to 4 were on the neck and face.
Roopa Bharati (P.W.6) had proved the recovery of axe (Kulhari) (Ex.P/7) at the instance of the present appellant. She stated that Ramesh, deceased, was her nephew. The present appellant was arrested and after two or three days of occurrence, she came alongwith the police party and got recovered an axe from the heap of woods lying in the house.
Bhuri Bai (P.W.8) and Sundar Bai (P.W.9) were examined by the prosecution to say that the matrimonial relations between present appellant Paras and deceased Ramesh were not cordial. These witnesses have proved the motive on the part of the appellant to commit the crime. Geeta (P.W.13) and informant Seeta (P.W.14) had deposed regarding the conduct of the appellant immediately after the occurrence. These two witnesses have stated that the deceased had gone to sleep with the appellant in his bedroom at about 9.00 p.m. after taking meals, whereas they were sleeping on the ground floor. At about 10.00 p.m., Paras came to the ground floor and pronounced in a loud voice that Ramesh has been killed. Geeta (P.W.13) specifically stated that (5) there is only one door for entry and exit to the house. The door leading to entry and exit, according to Geeta (P.W.13), at night was bolted by her mother-in-law Seeta (P.W.14). Seeta stated that after the occurrence, someone relayed the information to the police on telephone and the police reached the place of occurrence after one hour of the incident.
Ravindra Charan (P.W.11), being the Investigating Officer, proved various facets of the investigation including registration of the case, conduct of investigation, preparation of rough site plan, recording of the statements of the witnesses under 161 CrPC, recovery of various articles and regarding disclosure statement made by the accused under Section 27 of the Indian Evidence Act and recovery of weapon at her instance. Thereafter prosecution closed its evidence and the statement of the accused was recorded under Section 313 CrPC. All incriminating evidence was put to her. She denied the same and pleaded innocence. The version given by her can be translated as under :-
"I was not having strained relations with my husband. I alongwith my children was sleeping in other part of the house. On hearing cries of my husband, I went and saw that my husband was lying in a pool of blood. My husband had fallen (6) near the door of the room. I informed my mother- in-law. I have been falsely implicated."
Having perused the above evidence with the aid of counsel for the parties, we have heard Mr. Jitendra Ojha, counsel for the appellant and Mr. K.R. Bishnoi, counsel for the State.
Mr. Ojha has challenged the conviction on the ground that no eye-witness of the occurrence has been cited or examined by the prosecution. It has been further contended that Geeta (P.W.13) and Seeta (P.W.14) are interested witnesses and no reliance can be placed upon their testimony. It is stated that the present appellant is victim of false implication as P.W.13 Geeta and P.W.14 Seeta will gain advantage so far as succession of the ancestral property is concerned as the present appellant because of the conviction on account of murder of her husband will be disqualified to succeed to the share of her husband in the joint family property, therefore, it has been vehemently contended that this court should not only discard the testimony of P.W.13 Geeta and P.W.14 Seeta, Bhabhi and mother of the deceased respectively, but should also hold that these witnesses have falsely deposed. According to counsel for the appellant, recovery of Kulhari is a padding. It is stated that no (7) independent witness has been examined to lend assurance to the fact that the disclosure allegedly made by the appellant was not result of coercion or duress. It has been further stated that the investigation in the present case is tainted and in case this court grant no credence to the testimony of P.W.13 Geeta and P.W.14 Seeta, there is no evidence with the prosecution to prove the chain of circumstances to come to the conclusion that nobody else has committed offence except the appellant.
Counsel for the State has stated that the presence of P.W.13 Geeta and P.W.14 Seeta in the house is natural, probable and convincing. It is submitted that the occurrence took place in the house in the night and on that occasion, these witnesses could not be anywhere else except in the house. It is further submitted that these witnesses will be the last persons to substitute the true assailant.
Having considered the submissions made by counsel for the parties, we are of the view that there are some salient features of this case which can neither be ignored nor wished away. Admittedly, the present appellant is the wife of the deceased. It has come in the prosecution evidence that her relations with the husband were not cordial. It has also come in evidence that a day before the occurrence, Ramesh (8) had returned from Baroda. On the day of occurrence, after taking meal at about 9.00 p.m. the husband and the wife alongwith the children retired for sleep to their bedroom on the first floor. It has also come in evidence that for ingress and outgress of the house, there is only one door and that door was closed by mother-in-law Seeta (P.W.14). Nobody had opened the door. Nobody had entered the house. How Ramesh died is a circumstance which is in special knowledge of the appellant, being wife. She was bound to explain as to how her husband suffered lethal injuries and died as a result of them.
Section 106 of the Indian Evidence Act cast a presumption upon the appellant to explain the death of her husband. We are conscious that even though Section 106 of the Indian Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused, yet this section would apply to cases like the present, where the prosecution succeeded in proving the facts from which a reasonable inference can be drawn regarding death, and the accused person having special knowledge must offer an explanation, which might lead the court to draw a different inference.
The appellant in her statement under Section 313 (9) CrPC has admitted her presence in the house, where her husband was found murdered. She want this court to believe that while she was sleeping, her husband was murdered, her being unaware. Immediately, she, as per her own statement, had found husband near the bedroom lying murdered, in the pool of blood, yet, why, when, by whom and how murder was committed, the present appellant has offered no explanation. Section 106 of the Indian Evidence Act, specifically state that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
So far as the application of Section 106 of the Evidence Act is concerned, Hon'ble Apex Court in Prithipal Singh & Ors. Vs. State of Punjab & Anr., 2011(4) R.C.R. (Criminal) 791 : 2011(6) Recent Apex Judgments (R.A.J.) 61 :
(2012)1 SCC 10, considered the issue at length placing reliance upon its earlier judgments including State of West Bengal Vs. Mir Mohammad Omar & Ors. etc. etc., 2000(4) R.C.R.(Criminal) 147 : AIR 2000 Supreme Court 2988; and Sahadevan @ Sagadevan v. State rep. by Inspector of Police, Chennai, 2002(4) R.C.R.(Criminal) 752 : AIR 2003 Supreme Court 215 and held as under :
"That if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for the prosecution to prove (10) certain facts particularly within the knowledge of the accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused."
Similar view was also reiterated in Santosh Kumar Singh v. State through CBI, 2010(4) R.C.R.(Criminal) 593 :
2010(5) Recent Apex Judgments (R.A.J.) 518 : (2010)9 SCC 747; and Manu Sao v. State of Bihar, 2010(3) R.C.R.(Criminal) 805 : 2010(4) R.A.J. 384 : (2010)12 SCC 310).
In the light of the presumption, this court has to appreciate the prosecution case. In the FIR, it has been specifically stated that the relations between the appellant and her husband deceased Ramesh were not cordial. This fact has also been corroborated by two witnesses, namely, Bhoori Bai (P.W.8) and Sundar Bai (P.W.9). We find merit in the contention (11) advanced by counsel for the State that P.W.13 Geeta being Bhabi and P.W.14 Seeta being mother of the deceased will not substitute the true assailant. Even otherwise, they have no animus against the present appellant. We are also of the view that the deposition of P.W.13 Geeta and P.W.14 Seeta in the court aspire confidence.
Taking totality of the circumstances, we find no reason to differ with the well-reasoned judgment rendered by the court below. Consequently, we affirm the judgment of conviction and sentence holding that there is no scope for interference. Hence, the present appeal being devoid of merit is dismissed.
[KANWALJIT SINGH AHLUWALIA], J. [GOVIND MATHUR], J. Pramod