Rajasthan High Court - Jodhpur
Sheshkaran Dan vs State on 17 August, 2020
Author: Sandeep Mehta
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 216/2019
Sheshkaran Dan S/o Sh. Jeevandan, By caste Charan, aged 37
years, Resident of Ward No. 3, Pugal, District Bikaner (Raj.).
(Presently lodged in Central Jail, Bikaner).
----Appellant
Versus
The State of Rajasthan.
----Respondent
For Appellant(s) : Mr. Pradeep Shah
Mr. Chakravarti Singh Rathore.
For Respondent(s) : Mr. Anil Joshi, PP.
Mr. Vineet Jain.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MS. JUSTICE KUMARI PRABHA SHARMA
JUDGMENT
Date of Reserve ::: 27/07/2020
Date of Pronouncement ::: 17/08/2020
BY THE COURT : (PER HON'BLE MEHTA, J.)
1. The appellant herein has been convicted and sentenced as below vide judgment dated 22.07.2019 passed by the learned Additional Sessions Judge (Women Atrocities Cases), Bikaner in Sessions Case No.35/2013 (C.I.S. No.35/2013):
Offences Sentences Fine Fine Default
sentences
Section 302 IPC Life Imprisonment Rs.10,000/ 3 Months'
- Imprisonment
(Downloaded on 17/08/2020 at 08:42:55 PM)
(2 of 18) [CRLA-216/2019]
2. Being aggrieved of his conviction and sentences, the
appellant has preferred the instant appeal under Section 374(2) Cr.P.C.
3. Brief facts relevant and essential for disposal of the appeal are noted herein below:
4. Amolak Dan (PW-2) lodged a written report (Ex.P/3) at the Police Station Pugal on 29.11.2012 at 01.15 PM. alleging inter alia that his daughter Mohini was married to Sheshkaran Dan (the appellant herein) about 6-7 years ago. Soon after the marriage, she started residing at her matrimonial home with her husband. Two children were born from the wedlock of the appellant and Smt. Mohini. On 29.11.2012, Amolak Dan received an information that his daughter was unwell and he should reach the hospital. On this, he immediately rushed to the hospital and saw Mohini lying dead there. It was further alleged that Mohini was being harassed and humiliated in the matrimonial home on account of demand of dowry. A community panchayat was convened whereafter, things settled and Mohini resumed her conjugal relationship and started living with her husband and mother-in-law. However, the ill- treatment continued. He counselled his daughter that things would settle down and improve with time. However, the greed of the accused did not abate and they finally murdered Smt. Mohini so that Sheshkaran Dan could remarry and fetch good dowry in remarriage. On the basis of the report aforesaid, an FIR No.252/2012 (Ex.P/5) came to be registered at the Police Station Pugal, District Bikaner for the offence under Section 304B of the IPC and investigation was commenced. The dead body of Smt. (Downloaded on 17/08/2020 at 08:42:55 PM) (3 of 18) [CRLA-216/2019] Mohini was subjected to autopsy at the PBM Hospital, Bikaner. The Medical Board issued a Postmortem Report (Ex.P/15) observing that the first and second cervical vertebra of the deceased were dislocated with associated laceration on the anterior side. The muscles, blood vessels and other associated parts of the neck were also lacerated which led to the death of Smt. Mohini. Since the medical opinion indicated death by mechanical violence, the offence under Section 302 IPC was added to the case. Two witnesses Ganesh Kumar (PW-9) and Manish Vikram Singh (PW-
10) gave statements to the I.O. on 03.12.2012 alleging that the accused came to the shop of Ganesh Kumar and made an extra- judicial confession in their presence. After concluding investigation, a charge-sheet came to be filed against the appellant and his mother Natthi Devi for the offences under Sections 498A, 406 and 302 IPC.
As the offences were triable by Court of Sessions, the case was committed to the Sessions Court, Bikaner from where, it was transferred to the court of learned Additional Sessions Judge (Women Atrocities Cases), Bikaner for trial where charges were framed against the accused appellant Sheshkaran Dan for the offences under Sections 498A, 406 and 302 IPC and against the co-accused Natthi Devi for the offences under Sections 498A and 406 IPC. Both the accused pleaded not guilty and claimed trial. The prosecution examined as many as 23 witnesses and exhibited 18 documents in its endeavor to bring home the charges. Upon being questioned under Section 313 Cr.P.C., the accused denied the prosecution allegations, claimed that the marriage of the appellant Sheshkaran Dan was solemnised with Mohini about 10 years ago and by way of a reciprocal arrangement, marriage of (Downloaded on 17/08/2020 at 08:42:55 PM) (4 of 18) [CRLA-216/2019] Mohini's brother was solemnised with the sister of Sheshkaran Dan and that no dowry was ever demanded by either side. The accused Sheshkaran Dan took a pertinent plea that he did not make an extra-judicial confession in presence of the witnesses Ganesh Kumar and Manish Vikram Singh. A pertinent plea was also taken that Smt. Mohini was suffering from epileptic fits and she fell down whereby, her neck broke leading to her death. Sheshkaran Dan was working in the fields when the incident took place. He rushed to his home on coming to know of the unfortunate incident and took Mohini to the hospital but she could not be saved. Four witnesses including the accused Smt. Natthi Devi herself were examined and 7 documents were exhibited in defence. At the conclusion of the trial, the learned trial court proceeded to hold, by the impugned Judgment, that the prosecution could not lead cogent evidence so as to bring home the charges under Section 498A and 406 IPC and accordingly, the accused appellant Sheshkaran Dan as well as the co-accused Smt. Natthi Devi were exonerated of these offences. The trial court, however proceeded to place reliance on the evidence of extra- judicial confession as deposed by Ganesh Kumar (PW-9) and Manish Vikram Singh (PW-10) and proceeded to hold the accused appellant Sheshkaran Dan guilty of the charge under Section 302 IPC in the above manner. Being aggrieved by his conviction and sentences, the appellant has preferred the instant appeal under Section 374(2) Cr.P.C. for assailing the impugned Judgment dated 22.07.2019.
5. Sarva Shri Pradeep Shah and Chakravarti Singh Rathore, learned counsel representing the appellant, vehemently and (Downloaded on 17/08/2020 at 08:42:55 PM) (5 of 18) [CRLA-216/2019] fervently contended that the entire prosecution case is false and fabricated. The marriage of Mohini with the appellant was as a matter of fact solemnised more than 10 years ago but the prosecution witnesses intentionally and fraudulently tried to curtail this period to below 7 years so as to take advantage of the presumption under Section 113B of the Evidence Act. As per Shri Shah, this intentional falsehood on the part of the prosecution witnesses, discredits their evidentiary worth. It was a reciprocal relationship between the two families as Mohini's brother was married to the sister of the appellant and thus, there could not have been any cause or justification for the appellant to have demanded dowry or to have harassed and humiliated Smt. Mohini on this account. He urged that the acquittal of the appellant from the charge under Section 498A of the IPC fortifies this assertion. He further submitted that the allegation of the prosecution that the appellant herein uttered an extra-judicial confession in the presence of the witnesses Ganesh Kumar (PW-9) and Manish Vikram Singh (PW-10) is totally fabricated because no such fact is mentioned in the FIR (Ex.P/5). He contended that had the appellant made an extra-judicial confession in the manner narrated by the prosecution witnesses Ganesh Kumar (PW-9) and Manish Vikram Singh (PW-10) then, this fact would definitely have been incorporated in the first information report. He further urged that even the presence of the two witnesses at the given time is doubtful. As per Shri Shah, merely because Ganesh Kumar signed few of the documents prepared by the police at the hospital, that by itself could not be a reason to assume that he was present in the hospital from before. Shri Shah further submitted that the Medical Jurist (PW-21) Dr. Radheyshyam Verma admitted that he (Downloaded on 17/08/2020 at 08:42:55 PM) (6 of 18) [CRLA-216/2019] did not open the spinal cord of the deceased. Thus, as per Shri Shah, the medical evidence does not establish that the death of Mohini was homicidal in nature. Without prejudice to the above contentions, he urged that even if, it is assumed that the accused appellant made the extra-judicial confession in presence of Ganesh Kumar (PW-9) and Manish Vikram Singh (PW-10) then also, the tenor of the words spoken by the accused was to the effect that he was fed up with the quarrels between his mother and wife and out of frustration and in a fit of anger, he twisted the neck of Smt. Mohini. He thus urged that even if the prosecution case is accepted to be true at the highest then also, the offence attributed to the appellant would not travel beyond Section 304 Part II IPC. In support of this contention, Shri Shah placed reliance on the following Supreme Court's Judgments:-
(i) Surain Singh vs. State of Punjab, reported in AIR 2017 SC 1904, and
(ii) Uday Singh vs. State of U.P., reported in 2002 Cr.L.R. (SC) 823.
He thus implored the court to set aside the impugned Judgment and either acquit the appellant of the charge under Section 302 IPC or to suitably alter the offence under Section 302 to an offence under Section 304 Part II IPC.
6. Per contra, learned Public Prosecutor Shri Anil Joshi and Shri Vineet Jain, learned counsel representing the complainant, vehemently and fervently opposed the submissions advanced by the appellant's counsel. They contended that the deceased Mohini was married to the appellant about 6-7 years ago. Right from the date of her marriage till her homicidal death in the matrimonial (Downloaded on 17/08/2020 at 08:42:55 PM) (7 of 18) [CRLA-216/2019] home, Smt. Mohini was continuously harassed and humiliated in her matrimonial home on account of demand of the dowry. The fact regarding Smt. Mohini having been strangled to death is well established from the evidence of the Medical Jurist (PW-21) Dr. Radheyshyam Verma. They further contended that as Smt. Mohini was admittedly living in her matrimonial home where she received injuries by the mechanical violence on her neck leading to her death, the burden to explain as to how Smt. Mohini received such injuries would shift on to the accused appellant by virtue of Section 106 of the Indian Evidence Act. On these grounds, they implored the Court to dismiss the appeal and affirm the appellant's conviction as recorded by the trial court vide impugned Judgment.
7. We have given our thoughtful consideration to the submissions advanced at bar and have minutely gone through the impugned Judgment and thoroughly re-appreciated the evidence available on record.
8. On going through the evidence of Amolak Dan (PW-2), father of Smt. Mohini and Bhanwar Dan (PW-3) her brother, it is clear that for a period of about 3 years from the marriage, there was no complaint whatsoever regarding the accused having harassed and humiliated Smt. Mohini on any account whatsoever. The learned trial court thoroughly re-appreciated and discussed the evidence regarding the prosecution charge that the accused indulged in harassing and maltreating Smt. Mohini during the period of her subsisting marriage and came to the following conclusion:- (Downloaded on 17/08/2020 at 08:42:55 PM)
(8 of 18) [CRLA-216/2019] "vfHk;qDrx.k ds fo:) /kkjk 498, o 406 Hkk-na-la- ds vkjksi ds laca/k esa vfHk;kstu ds fdlh Hkh xokg us ;g Li'V dFku ugha fd;k gS fd e`rdk ls dc dc o D;k D;k ngst dh ekax vfHk;qDrx.k }kjk dh x;hA xokgku } kjk ;g Hkh Lohdkj fd;k x;k gS fd "kknh ds yxHkx 3 o'kZ rd vfHk;qDr o e`rdk ds e/; dksbZ fookn ugha FkkA ;g rF; Hkh izdV gksrk gS fd vfHk;qDr o mldh cfgu dh "kknh vkVk lVk esa gq;h vkSj fdlh Hkh izdkj ds ngst dk ysu nsu ugha gqvk FkkA ngst dk lkeku vfHk;qDrx.k dks U;Lr fd;s tkus ds laca/k esa Hkh vfHkys[k ij lk{; dk vHkko gSA izFke lwpuk fjiksVZ ds rgr Hkh /kkjk 498, o 406 Hkk-na-la- ds vkjksi gsrq vko";d rRoksa dk dFku ugha fd;k x;k gSA xokgku }kjk ngst esa fHkUu fHkUu lkeku tSls] xguk] iSlk] eksVjlkbZfdy] ?kjsyw lkeku bR;kfn ekaxs tkus ds laca/k esa fHkUu fHkUu dFku dgs x;sa gSA vr% vfHk;qDrx.k mDr vkjksiks ls nks'keqDr gksus ds ik= gSA "
Otherwise also, it does not stand to reason that when the parties were in a reciprocal relationship, how only one family would indulge in demands of dowry etc. or indulge in harassment of one of the girls. Thus, this theory as put-forth by the prosecution is totally unbelievable and was rightly discarded. In addition to the above, it may be mentioned here that while in the FIR and even in the evidence of the material prosecution witnesses being the maternal relatives of the deceased, it was alleged that period of Mohini's subsisting marriage with Sheshkaran Dan was about seven years but while filing the charge-sheet, the Investigating Officer concluded that their marriage was solemnised ten years ago. Thus, the evidence of the material prosecution witnesses including that of the first informant is falsified to this extent and has to be viewed with circumspection. As a consequence, the prosecution does not have available to it, the aid of any presumption so as to bring home the charge against the accused appellant. It may be stated here that there is no eye-witness of the incident. Thus, the prosecution evidence for the charge under Section 302 IPC would have to be of such quality which would lead to the unequivocal conclusion that the accused Sheshkaran Dan was the only person responsible for murdering Smt. Mohini.
(Downloaded on 17/08/2020 at 08:42:55 PM)
(9 of 18) [CRLA-216/2019]
9. The learned trial court arrived at a conclusion of guilt of the accused appellant primarily on the basis of three circumstances. The first conclusion of the trial court was based on the so-called evidence of disclosure i.e., the accused gave an information to the I.O. under Section 27 of the Indian Evidence Act and led him to the place where he had allegedly strangled Smt. Mohini. In this regard, it is a settled proposition of law that such part of information of the accused recorded by a Police Officer which is confessional in nature, cannot be proved and as a consequence, is not admissible in evidence. Manifestly, the inculpating part of the information (Ex.P/14) wherein, the accused allegedly admitted to have killed Smt. Mohini is totally inadmissible because the same would be hit by Section 25 of the Evidence Act. It may be stated here that the Site Inspection Plan (Ex.P/8) which the I.O. prepared on the basis of the information provided by the accused, records that a cot was lying at point 'X' in a room where Sheshkaran Dan admitted to have murdered his wife Smt. Mohini. Manifestly, the confession of the accused as is recorded in this document, is totally inadmissible and has to be excluded from consideration. The remaining part of the document, simply records presence of a cot at mark 'X' in the room. Obviously, when the husband and wife were living together in the house, presence of a cot in their room was but natural. Therefore, the conclusion drawn by the trial court in the impugned Judgment that the disclosure made by the accused pointing out the cot where he allegedly murdered Smt. Mohini was incriminating in nature, is absolutely baseless and frivolous.
(Downloaded on 17/08/2020 at 08:42:55 PM)
(10 of 18) [CRLA-216/2019] Once the said finding of the trial court is eschewed from consideration, the other two findings of the trial court which need to be discussed, are regarding the alleged evidence of extra- judicial confession and the conclusion that the accused failed to give a plausible explanation and thus, the reverse burden of proof under Section 106 of the Evidence Act operated against him.
10. Firstly, we proceed to discuss the evidence of two witnesses of extra-judicial confession namely Ganesh Kumar (PW-09) and Manish Vikram Singh (PW-10). As per the evidence of Bhanwar Dan (PW-3), information regarding Smt. Mohini having been taken to the hospital was received in the morning of 29.11.2012 at about 12 O' Clock. The written report (Ex.P/3) came to be lodged by Amolak Dan (PW-2) at the Police Station Pugal at 01:15 PM. The Investigating Officer, prepared Fard-Surathaal Lash (Ex.P/4), Panchayatnama Lash (Ex.P/6) and the Fard-Supurdgi Lash (Ex.P/7) at the hospital at 03:45 PM, 04:00 PM and 05:15 PM respectively. The learned trial court, drew much water from the fact that Ganesh Kumar (PW-9) signed the documents Fard- Surathaal Lash (Ex.P/4) and Panchayatnama Lash (Ex.P/6) and thus, his presence at the hospital on the day of the incident was well established. As per the evidence of Ganesh Kumar (PW-9) and Manish Vikram Singh (PW-10), both of them claimed to be close to the complainant party and went to the hospital upon receiving information that Smt. Mohini had been brought there. The doctors declared Smt. Mohini dead in their presence. Smt. Mohini's mother-in-law (accused Natthi Devi), husband Sheshkaran Dan and Mohini's parents were present at the hospital. They saw marks of cuts etc. on her chest and abdomen. (Downloaded on 17/08/2020 at 08:42:55 PM)
(11 of 18) [CRLA-216/2019] An inquiry was made about these marks upon which, Mohini's mother-in-law stated that she had tried to give hot fomentation to Mohini resulting into these marks. Thereafter, both the witnesses left the hospital and went to the shop of Ganesh Kumar. The accused Sheshkaran Dan followed them an hour later and came to the shop of Ganesh Kumar and in presence of both the witnesses, he allegedly confessed that he was fed up with the quarrels of his mother and wife and out of anger and frustration, he had twisted her wife's neck and that he should be saved from prosecution. It may be stated here that neither of these two witnesses claimed that accused had any close relationship with them nor were they having any such influence or clout that they could aid the accused in escaping prosecution in any manner. Thus, there was no ostensible reason as to why the accused would suddenly decide to make a confession to them. It may be further stated here that Ganesh Kumar was admittedly present in the hospital when the documents Fard-Surathaal Lash (Ex.P/4) and Panchayatnama Lash (Ex.P/6) were prepared and he signed the same. The oral extra-judicial confession was allegedly made by the accused during the intervening period. Both the witnesses failed to disclose to the I.O. on the very same day i.e. 29.11.2012 that the accused had made an extra-judicial confession in their presence. As these witnesses were close to the family of Amolak Dan, natural human conduct demanded that they should have immediately divulged the fact that the accused Sheshkaran Dan had made the confession in their presence because such disclosure would definitely provide an important lead to police in investigating the matter. However, they gave the statements to the I.O. incriminating the accused appellant as late as on 03.12.2012. (Downloaded on 17/08/2020 at 08:42:55 PM)
(12 of 18) [CRLA-216/2019] Furthermore, the FIR had already been registered wherein, Sheshkaran Dan was the prime accused; the 'police karywahi' was going on in the hospital and thus, it is totally unacceptable that the police officers would permit the accused Sheshkaran Dan to leave the hospital and roam around here and there. He definitely would have been confined with the police team as would be natural consequence of being named in the FIR. Manifestly, the case of the prosecution had met a road block because the theory put-forth in the FIR regarding the marriage of the deceased with the accused having taken place within 7 years, was found to be incorrect and manifestly, the I.O. was apprehensive of loosing out on the aspect of presumption under Section 113B of the Indian Evidence Act. Thus, it is clear as daylight that the two witnesses Ganesh Kumar (PW-9) and Manish Vikram Singh (PW-10) were stage managed as late as on 03.12.2012 to give evidence regarding the accused having made an extra-judicial confession that he had twisted the neck of Smt. Mohini in a fit of rage. The witness Ganesh Kumar was cross-examined extensively and he admitted that he was present at the hospital when the Fard- Surathaal Lash (Ex.P/4) and Panchayatnama Lash (Ex.P/6) were prepared and signed the same but at that time, he did not disclose to the I.O. that the accused had confessed to his guilt before him and Manish Vikram Singh. Similarly, Manish Vikram Singh (PW-10) was also cross-examined regarding the delay in divulging this important fact and he could not offer any plausible explanation. This important omission appearing in the evidence of Ganesh Kumar was not even referred to by the trial court in the impugned Judgment. Thus, we are of the considered opinion that the evidence of the witnesses Ganesh Kumar (PW-9) and Manish (Downloaded on 17/08/2020 at 08:42:55 PM) (13 of 18) [CRLA-216/2019] Vikram Singh (PW-10) regarding the accused having made an extra-judicial confession in their presence, is totally unworthy of belief/unreliable. Otherwise also, law is well settled by a catena of decisions rendered by Hon'ble the Supreme Court that evidence of extra-judicial confession is inherently a weak piece of evidence. In this regard, reference may be had to the judgment rendered by Hon'ble the Supreme Court in the case of Madan Lal Guru Vs. Stated of Rajasthan reported in 2020(1) Cr.L.R. (Raj.) 364. Thus, conclusion of guilt drawn against the accused appellant by the trial court on the basis of the evidence of Ganesh Kumar (PW-
9) and Manish Vikram Singh (PW-10), is unsustainable.
The case of the prosecution regarding the accused having harassed and humiliated the deceased on any account whatsoever has been discarded by the trial court and rightly so after a thorough evaluation of the evidence available on record. Thus, the accused had no motive whatsoever to murder Smt. Mohini.
11. Once the evidence of extra-judicial confession is eschewed from consideration, then the prosecution can only hang on to the thin string of the reverse burden of proof under Section 106 of the Evidence Act for affirmation of the charge under Section 302 IPC. As per Section 101 of the Evidence Act, the primary burden of proving the existence of a fact is upon the person who asserts the existence thereof. In the present case, the prosecution has made an endeavour to prove that the accused appellant was the only person present with the deceased Smt. Mohini at the time of her death and thus, he can be presumed to be having the exclusive knowledge regarding the cause of her death. With this (Downloaded on 17/08/2020 at 08:42:55 PM) (14 of 18) [CRLA-216/2019] assumption, the burden of proof is sought to be shifted upon the accused by virtue of Section 106 of the Evidence Act. In this regard, the law is well-settled that the prosecution would have to prove the presence of the accused in the house with the deceased by plausible evidence before the exclusive knowledge about the incident can be imputed to him. Apparently, none of the prosecution witnesses was present at the spot and thus, there is no evidence; either direct or inferential regarding presence of the accused in the house with Smt. Mohini at the time of her death. The time of the incident was in the late hours of the morning and thus, in a farmer's family, it would be absolutely natural that the man of the house would have proceeded to the fields for farming purposes etc. The accused Sheshkaran Dan took a pertinent plea in his statement under Section 313 Cr.P.C. that he was working in the fields when Mohini got the injuries leading to her death. Natthi Devi appeared as defence witness (DW-3) and stated in her evidence that she was present in the house when the incident took place whereas, Sheshkaran Dan was working in the fields. Mohini fell down unconscious on which, she called Sheshkaran Dan from the fields and thereafter, she was taken to the hospital. Apparently thus, from the best possible analysis of the factual matrix as available on record, the only person present with Smt. Mohini at the time of incident was Natthi Devi. Hence, the thrust of reverse burden of proof under Section 106 of the Evidence Act, if at all applicable, would operate against her rather than against the appellant. However, the prosecution did not even seek to charge Natthi Devi for the offence under Section 302 IPC. Therefore, the conclusion drawn by the trial court in the impugned Judgment that by failing to give a plausible explanation regarding the unnatural (Downloaded on 17/08/2020 at 08:42:55 PM) (15 of 18) [CRLA-216/2019] death of Mohini, her husband the accused appellant Sheshkaran Dan was liable to face the ramification of the reverse burden of proof under Section 106 of the Evidence Act, is absolutely unfounded and cannot be sustained.
As an upshot of the above discussion, we are of the firm view that the prosecution has failed to lead conclusive evidence to satisfy the Court beyond all manner of doubt that the accused appellant was the only person who was present besides the deceased on the day of the incident and that he twisted her neck with an intention of murdering her.
In this regard, reference may be had to the Supreme Court Judgment rendered in the case of Narain Lal vs. State of Rajasthan, reported in MANU/SC/0661/1969 wherein Hon'ble the Apex Court held as under:
"5. On the question as to who committed the murder, the High Court relied on the evidence of Dr. Mathur that even one person could have done it and that the injuries on her person indicated that the lady had received a beating prior to her strangulation. Examining the evidence, the High Court held that of all the persons in the house Narain Lal had a greater opportunity to commit the crime than any other person. The High Court rejected the evidence of Sukh Devi that Smt. Pista was sleeping in the same room with her. Sukh Devi's evidence was that Pista was quite hale and hearty when she went to sleep in the night with her but that she found her dead and lying on the floor when she woke up in the morning and she had no idea as to how the deceased fell down from the bed and further she did not notice any injury on her body. Her definite statement was that no body had come into the room during the night and the two doors of the room had been bolted from inside. According to the High Court her version was patently unconvincing. The High Court also took note of the fact that Babu Lal, the brother of the Appellant had not been produced to prove that Narain Lal was sleeping with him on the ground floor of the house as suggested. Further, of all persons Narain Lal had the greatest opportunity to commit the crime. The letters and particularly Ex. P. 16 written by Narain Lal to Sitaram certainly go to (Downloaded on 17/08/2020 at 08:42:55 PM) (16 of 18) [CRLA-216/2019] show that the husband had no love for the wife. In Ex. P. 16 the husband had even suggested to his wife's brother that if the latter could arrange her remarriage with any body else he would be prepared to divorce her. The letter is also to the effect that Sitaram should persuade his mother to think over the matter. On the letters the High Court took the view that even though the deceased had become pregnant it was clear that at one stage her husband had mad up his mind to give up all relations with his wife and even divorce her. It may be noted that at the trial Sitaram's evidence was that within 2 or 3 months after his sister had gone over to her husband's place after the Gona ceremony Narain Lal, his mother and his father began beating Mst. Pista, that about two years before the incident she had been turned out of her husband's house after being given a beating, that thereafter she did not go to her husband's house for one year and even after she went there for the last time she had complained to him about the maltreatment given by her husband and her parents-in law.
6. On the evidence there can be no doubt about the following: the death was due to homicide by strangulation, the husband and the members of his family wanted to perform the cremation ceremony without informing the deceased's brother; the husband wanted to cut of all connections with his wife and the beating and maltreatment was not meted out to her by her husband alone but also by her parents-in-law. The evidence at best suggests a motive for the husband and his parents to get rid of the wife but there are no circumstances which clinch the husband's guilt beyond any room for doubt. In Manumant v. The State of Madhya Pradesh AIR 1952 SC 1091 (1097) it was laid down by this Court:
...that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstance should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
Judged by the above, it is not possible to hold the Appellant guilty of the murder. There were no less than twelve members of the family living in the same house. Not only the husband but the parents-in-law of the Appellant used to beat her and the evidence is far from conclusive to exclude the possibility of any one but the husband having perpetrated the crime. The husband may have been a party to the crime (Downloaded on 17/08/2020 at 08:42:55 PM) (17 of 18) [CRLA-216/2019] but there is the possibility that another or others may have done it without his help. The High Court acquitted the Appellant's father entertaining doubt about his taking part in the crime. Although this Court does not ordinarily take a view of the evidence different from that of the courts below, specially if they are concurrent, the evidence being entirely circumstantial and being far from conclusive, we find ourselves unable to endorse the view of the courts below."
Similar view was taken by Hon'ble the Supreme Court in the cases of Bhagwan Dass vs. State of Haryana reported in 1996 Cr.L.R. (SC) 112 and Mulak Raj & Ors. vs. State of Haryana reported in 1996 Cr.L.R. (SC) 72.
12. The appellant's counsel, also raised a fervent argument that the Medical Jurist did not open the spinal cord of the deceased and thus, he could not have noticed the damage to the spinal cord and the vertebra C1 and C2. In this regard, we have carefully gone through the evidence of Dr. Radheyshyam Verma (PW-21) who conducted autopsy upon the dead body of Smt. Mohini. In cross- examination, the doctor admitted that he did not cut the spinal canal while carrying out autopsy upon the dead body. It is specifically recorded in the Postmortem Report (P-15) that the spinal cord of the deceased was healthy and was thus not opened. Since the Medical Jurist did not even choose to open the spinal cord of the deceased, it is doubtful whether the lacerations of the spinal cord and the injuries to C1 and C2 vertebrae which the doctor referred to in his evidence as being visible on the anterior side, would have been visible/noticeable. A very important conclusion can be drawn from this admission of the doctor. If at all, it was actually a case wherein, the accused twisted the neck of the deceased in a fit of rage then, the laceration of the spinal cord would not have been restricted to the anterior side of the neck (Downloaded on 17/08/2020 at 08:42:55 PM) (18 of 18) [CRLA-216/2019] only. The entire spinal cord and the underlying areas of the neck tissues would have received the consequential damage which would be visible to the Medical Jurist. Therefore, a doubt is casted on the veracity of the medical evidence deposed by witness Dr. Radheyshyam Verma (PW-21).
14. In wake of the discussion made herein above, the appeal deserves to be and is hereby allowed. The impugned Judgment dated 22.07.2019 passed by the learned Additional Sessions Judge (Women Atrocities Cases), Bikaner in Sessions Case No.35/2013 (C.I.S. No.35/2013) is hereby quashed and set aside. The appellant Sheshkaran Dan S/o Sh. Jeevandan is acquitted of the charge under Section 302 IPC. He is in custody and shall be released from prison forthwith if not wanted in any other case.
15. However, keeping in view the provisions of Section 437-A Cr.P.C., the appellant is directed to furnish a personal bond in the sum of Rs.40,000/- 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 a Special Leave Petition against the present judgment on receipt of notice thereof, the appellant shall appear before the Supreme Court..
16. Record be returned to the trial court forthwith.
(KUMARI PRABHA SHARMA),J (SANDEEP MEHTA),J
46-Tikam/-
(Downloaded on 17/08/2020 at 08:42:55 PM)
Powered by TCPDF (www.tcpdf.org)