Rajasthan High Court - Jaipur
Jagdish Prasad Loyal vs State Of Rajasthan Through Pp on 17 January, 2019
Author: Munishwar Nath Bhandari
Bench: Munishwar Nath Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 529/2015
Jagdish Prasad Loyal son of Shri Sanwalram, by caste Jat, aged
55 years, Resident of Siriyasar Kala Ka Bas, Police Station Sadar,
Jhunjhunu (Raj.). At present R/o Near Panchmukhi Balaji Mandir,
Lalpur Road, Jhunjhunu, District Jhunjhunu (Raj.).
(At present in Central Jail, Bikaner).
----Accused-Appellant
Versus
The State Of Rajasthan through P.P.
----Respondent
For Appellant(s) : Mr. Karamveer Singh
For Respondent(s) : Mr. Aladeen Khan, P.P.
HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI
HON'BLE MR. JUSTICE BANWARI LAL SHARMA
Judgment
17/01/2019
This appeal has been filed against the judgment dated 30.04.2015, passed by learned Additional Sessions Judge No. 2, Jhunjhunu in Session Case No. 50/2012 (150/2011) (128/2011). The accused-appellant has been convicted and sentenced as under:-
Under Section 498-A One year R.I. with fine of Rs. 500/-, in IPC case of default in payment of fine, to undergo one month additional imprisonment.
Under Section 302 IPC Life Imprisonment with fine of Rs.
5000/-, in case of default in payment of fine, to undergo six months additional imprisonment.
(Downloaded on 05/06/2021 at 09:22:08 PM)
(2 of 12) [CRLA-529/2015] The police registered an FIR on a written report made by Jailal Singh. It was stated that in the morning of 29.05.2011 at around 8:30 a.m. he received a phone call from his grand- daughter-Nidhi. She informed that her mother has become unconscious thus she is taken to the hospital. The complainant immediately reached to hospital and found his daughter to be dead. On enquiry about the death, it was disclosed that she has died out of drowning in a tank. He reached the house where deceased was residing along with the accused-appellant and found that the tank is only two and a half feet deep and having an opening of 2 Feet x 2 Feet. It was not possible for anyone to drown in such a tank. It was alleged that accused was always demanding dowry since marriage and was beating the deceased. It was also stated that the relatives of accused also got involved for demand of dowry and, for that, abused and harassed the deceased. They have killed his daughter.
On the said written report, an FIR bearing No. 184/2011 was registered for the offence under Sections 498-A, 302 and 120-B IPC. After investigation, the charge-sheet was filed for the offence under Sections 498-A and 302 IPC. The charges were framed later on vide order dated 08.10.2012. The charges were explained to the accused. It was denied by him thus trial commenced.
The prosecution produced seventeen witnesses apart from twenty nine documents to prove their case. The statement of accused was recorded under Section 313 Cr.P.C. He produced three documents in defence. In the statement recorded under Section 313 Cr.P.C., accused stated that the deceased died out of drowning in the tank. She fell in it accidentally. He was present on (Downloaded on 05/06/2021 at 09:22:08 PM) (3 of 12) [CRLA-529/2015] the spot and tried to save her. She was pulled out and immediately taken to the hospital but could not be saved.
Learned trial Court marshalled the evidence produced by both the parties and finding evidence against the accused to prove case beyond doubt, an order of conviction and sentence was passed. It has been challenged by way of this appeal.
Learned counsel for the appellant submits that the trial Court has convicted the appellant mainly after relying on the statement of PW-3- Kartikaya @ Seetu. It is in ignorance of his conduct, not to be natural. It is for the reason that on the day of incidence, he went to the playground but returned within ten minutes and during that time accused said to have pushed the deceased in the tank and sat on her till she died out of drowning. It could not have been within a period of ten minutes as deceased must have struggled to save herself and the process was bound to take time.
It is also stated that after that deceased was taken out of the tank as per the statement of PW-3, he asked his father as to what has been done by him. He was slapped with a threat that if he will raise voice, he would suffer with the same consequence. PW-3- Kartikaya @ Seetu thereupon went to the room and sat quietly. The aforesaid conduct is not natural. If one's mother has died all of a sudden then, as a natural consequence, one will shout loudly so as to gather the crowd. The aforesaid aspect has been ignored by the trial Court. It is lastly submitted that the accused has been implicated just to grab the land. PW-3- Kartikaya @ Seetu made statement under the influence of his maternal grand-father.
In view of the above, testimony of PW-3- Kartikaya @ Seetu should not have been believed by the trial Court. A reference of the judgment of Apex Court in the case of Bhagwan Singh And (Downloaded on 05/06/2021 at 09:22:08 PM) (4 of 12) [CRLA-529/2015] Ors. vs. State of M.P., reported in AIR 2003 Supreme Court 1088 has been given. In the said case, child witness saw quarrel and thereupon went to the room and slept. He got up next day in the morning. In the aforesaid circumstance, Apex Court did not believe the statement of said child witness as his conduct was not natural. The judgment aforesaid applies to this case.
Learned counsel for the appellant has further stated that the deceased died after falling in the tank accidentally. She sustained head injury and it may be because she fell asleep as otherwise it was not possible to put her head in the tank having water up to the level of 28 inches only and to keep it till she dies. It is more so when tank was having opening around 2 feet x 2 feet only. No injuries have been found on the body of deceased. In view of the above also, case set out by the prosecution becomes doubtful and, for that, benefit should be given to the accused.
A reference of the judgment in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, reported in 1984 (2) Crimes Page 235 Supreme Court has been given. It was also a case of circumstantial evidence. In view of the above, prayer is to set aside the order of learned trial Court and acquit the appellant for the offence under Sections 498-A and 302 IPC. It is more so when prosecution could not prove demand of dowry so as to make out a case under Section 498-A IPC.
Learned Public Prosecutor has opposed the arguments raised by learned counsel for the appellant. He submits that the trial Court has not convicted the appellant only based on the statement of PW-3- Kartikaya @ Seetu but after taking into consideration other evidence. The trial Court found that prosecution has proved its case beyond doubt against the accused for the offence under (Downloaded on 05/06/2021 at 09:22:08 PM) (5 of 12) [CRLA-529/2015] Sections 498-A and 302 IPC. It has thus rightly convicted the appellant for those offences.
It is also stated that ground of challenge to the testimony of PW-3- Kartikaya @ Seetu is hypothetical in nature. It is otherwise in ignorance of the statement of PW-3. The said witness has stated about the incidence took place on 29.05.2011. He has stated that after the tea given by his mother (deceased), his sister- Nidhi went to attend tuition classes. He did not go out as was suffering from headache. His father (accused) insisted and asked him to go out to play with his friends. Under those circumstances, he went out to playground which was not far place. When he reached to playground, no friend was found available being Sunday. He returned to his house. When he reached the residence, he found door locked from inside thus could not open it. He then climbed on the wall and saw that his mother's upper part was put in the tank and father is sitting on her back. He immediately jumped inside the house. In the meanwhile, his father pulled out his mother, who was not having consciousness. He asked his father as to what has been done. He slapped him and was gave warning that if he will speak to anyone, will face the same consequences. He then went to the room and, thereafter, went to the hospital where his mother was declared dead.
The said witness was cross- examined by the appellant. His testimony could not be demolished. The arguments now raised are hypothetical i.e. as to whether one can kill a person within a period of ten minutes by putting her head inside the tank. It is also whether a boy can sit in a room after seeing the occurrence. The appellant did not ask any such question in the cross- (Downloaded on 05/06/2021 at 09:22:08 PM)
(6 of 12) [CRLA-529/2015] examination, and otherwise conduct of PW-3 cannot be said to be unnatural.
If somebody has been slapped and threatened after seeing the occurrence, may under normal circumstances, go and sit in the room. The conduct of PW-3- Kartikaya @ Seetu has been questioned without any basis. The conduct of PW-3 cannot be said to be unnatural. It is also for the reason as to why a son will make a statement against his father. A reference of the statement under Section 161 Cr.P.C. has also been given. It was recorded during the course of investigation wherein PW-3 had given the same story as was narrated in the Court thus it cannot be said that the Court statement was made under the influence of maternal grand- father or it was due to the property dispute.
It is also stated that defence taken by the accused under Section 313 Cr.P.C. was not accepted by the trial Court in reference to the evidence produced by prosecution to prove its case beyond doubt. The postmortem report shows two injuries to deceased and it can be caused while she was forcefully put in the tank having water up to the level of 28 inches only. One cannot die accidentally out of drowning in such a case thus the trial Court has rightly convicted and sentenced the accused for the offence under Sections 498-A and 302 IPC. The statements of witnesses show demand of dowry and harassment to the deceased regularly after marriage. The prayer is accordingly to dismiss the appeal.
We have considered rival submissions of the parties and perused the record.
The FIR was registered by the police on a written report (Exhibit P-1) by PW-1 Jailal Singh. He was examined by the prosecution and has stated about the occurrence, as was given in (Downloaded on 05/06/2021 at 09:22:08 PM) (7 of 12) [CRLA-529/2015] the written report. He has proved the written report (Exhibit-P-1) and FIR (Exhibit-P-2) registered on the written report. The site plan (Exhibit-P-5) has also been proved by him apart from recovery of stall (chunni) of deceased near the tank vide (Exhibit- P-6). The recovery memo of a slipper from the tank and one from outside Exhibit-P-7, was also proved by the said witness. He has stated that the incidence was described by his grand-son- Kartikaya @ Seetu who had seen the occurrence while sitting on the wall and, thereafter, he jumped inside the house. The accused was sitting on the back of deceased after putting her head inside the tank. The witness has further stated about the demand of dowry by the accused and, for his satisfaction to beat the deceased. In the cross- examination, question about the marriage was asked apart from other questions but narration of incidence by the said witness could not be demolished.
The other material witness produced by the prosecution is PW-3. He is otherwise an eye witness to the occurrence. He has given the same story as was narrated by PW-1. In the morning, after tea, his sister- Nidhi went to attend tuition classes while he stayed at home. His father asked why he is not going out to play along with his friends. He was reluctant to go out because of headache. His father insisted and, accordingly, he went to the playground. Being Sunday, none was found on the playground thus after ten minutes, he returned to his house. The door was found locked from inside thus could not be opened by him. He then climbed on the wall and saw that his father is sitting on the back of his mother whose neck was inside the tank. He immediately jumped inside. In the meanwhile, his father pulled his mother's head out of the tank. He asked his father about the (Downloaded on 05/06/2021 at 09:22:08 PM) (8 of 12) [CRLA-529/2015] incidence. He was slapped by him and threatened with the same consequence, if anything is disclosed to anyone. He thereupon went to the room and thereafter to the hospital. The conduct of said witness has been questioned by the appellant. It is firstly on the ground that a son would not sit quiet if his mother is subjected to murder.
We have considered the argument and find nothing unnatural in the conduct of PW-3. It is a case where PW-3 saw the occurrence and immediately asked about it from his father. He was slapped by him and threatened with the same consequence. A boy may go to the room under fear or for similar reasons. The conduct in such circumstances cannot be questioned because it depends on person to person.
The statement of PW-3 further shows that he went to the hospital and saw his mother dead. It is not that PW-3 remained at the residence after the occurrence but he went to the hospital thus the issue of unnatural act of the said witness cannot be accepted. The judgment of Apex Court in the case of Bhagwan Singh (supra) would not apply. The facts of the case of Bhagwan Singh are quite distinguishable.
Learned counsel further stated that how the occurrence could have taken place within a period of ten minutes because PW-3 returned to home within a period of ten to fifteen minutes.
We do not find any cross- examination on the aforesaid so as any reason as to why occurrence of the nature taken herein cannot take place within fifteen minutes. If the statement of PW-3 is looked into, it is the accused, who forced him to go outside to play. He could have been forced to go out only when accused was having some planning in his mind and when he remained (Downloaded on 05/06/2021 at 09:22:08 PM) (9 of 12) [CRLA-529/2015] successful in sending his son (PW-3) out of the home, gave cause to the occurrence immediately thereupon. No material has been referred by the counsel for the appellant to show that occurrence could not have taken place within a period of ten to fifteen minutes so as to discard the testimony of PW-3.
Accordingly, we are unable to accept any of the arguments raised in reference to the conduct or testimony of PW-3. His statement and conduct is natural otherwise why a son will state against his father, is not coming out from the evidence. The testimony of PW-3 has thus been believed by the trial Court and, for that, it has even considered postmortem report (Exhibit-P-26 and P-27) apart from statement of PW-12- Dr. Rajneesh Mathur. The postmortem report (Exhibit-P-26 and P-27) shows cause of death. It is due to asphyxia out of drowning. The duration of death has also been given. The deceased was having an abrasion on the forehead and otherwise rigor mortis was present on the neck.
The other evidence relied by the trial Court is even the site plan (Exhibit-P-5) proved by PW-1- Jailal Singh. The description of tank along with the size and depth has been given. The level of water has also been described. It was 38 inches deep. The tank was having opening of 24 inches x 22 inches i.e. around 2 feet x 2 feet. The trial Court found that it cannot be a case of accidental falling and death out of drowning in the water having 28 inches level only.
If the defence set out by the appellant is also considered then the deceased has received one injury on the forehead and if it was due to slip, she would have drowned inside the tank. It is otherwise stated by the accused that she was immediately pulled out. If that is so, one could not have died out of drowning. (Downloaded on 05/06/2021 at 09:22:08 PM)
(10 of 12) [CRLA-529/2015] It is true that the accused has given a written report about the incidence. It is vide Exhibit-P-25. But merely for the reason that report was earlier made by the accused about the incidence, the story, as described by PW-3, cannot be disbelieved. It is more so when a slipper was found inside the tank and other from outside vide recovery memo (Exhibit-P-7) apart from a "chunni" of the deceased (Exhibit-P-6). The recovery of those articles outside the tank proves that in the struggle, it went out and were found near the tank as otherwise in the case of accidental falling, "chunni" would not have come out. The police has also produced one piece of burnt plastic enclosed vide memo (Exhibit-P-8) to prove their case.
The other statement relevant to the case are given by PW-2 who has proved the site map. He has given size of the tank and even proved recovery of "chunni" (Exhibit-P-6). PW-4 Ginni Devi has also supported the prosecution case. It is not only for the incidence but even for demand of dowry. She was cross- examined by the accused but her statement could not be demolished.
In the cross- examination, PW-9- Radhey Shyam Saini has stated that on the day of occurrence, accused came to his residence for help and stated that Nidhi's mother (his wife) fell in the tank. He asked as to whether she sustained any injury. He thereupon went with the accused at his residence where he found deceased to be lying near the tank. He immediately asked to call the Ambulance by dialing 108 and found that it may take time. He took the deceased in an Auto Rickshaw to Indu Hospital. He did not go inside in the hospital but Jagdish came back from doctor's room and stated that his wife may have died.
(Downloaded on 05/06/2021 at 09:22:08 PM)
(11 of 12) [CRLA-529/2015] In the cross- examination, he has admitted that he went to the place of occurrence when the accused called him and not otherwise. He called for the Auto Rickshaw when it was asked by the accused to do so. He has, however, admitted that there was cordiality in the relation of husband and wife. The statement of said witness shows that the accused did not take deceased to hospital at his own, rather, went to residence of Radhey Shyam Saini to seek his help and it is only when he came along with the accused, the deceased was taken to hospital.
PW-12- Dr. Rajneesh Mathur has proved the postmortem report Exhibit-P-26 and P-27. He has given description of the injuries and even cause of death. In the cross- examination, he has given height of deceased, it is between six and a half to seven feet. He has admitted that if one falls in the tank, may die out of drowning, however, he is not an expert as to how the incidence took place especially when he was not given the size of tank and its opening apart from depth of the water at the time of incidence.
PW-15- Girdhari has proved the documents produced by the prosecution. It is not only in regard to the written report and FIR but recovery memos, site plan and even postmortem report. He has corroborated the statement of other witnesses. In the cross- examination, he has stated that depth of tank was around 38 inches while water was lying up to the level of 28 inches only. The length and width of tank has also been given with size of opening of tank which was 22 inches x 24 inches. He has denied the allegation that accused has been falsely implicated due to rivalry between the complainant and the deceased.
The trial Court has considered the statements of all the witnesses and the documents produced by the prosecution as well (Downloaded on 05/06/2021 at 09:22:08 PM) (12 of 12) [CRLA-529/2015] as in defence. The evidence on record proves that the incident took place as described by PW-3- Kartikaya @ Seetu and not in the manner given by the accused in his statement under Section 313 Cr.P.C. The statement of PW-3- Kartikaya @ Seetu recorded under Section 161 Cr.P.C. was produced in defence but it could not be shown that there was contradiction or improvement in his Court statement. Taking into consideration for the aforesaid, we do not find any force in any of the arguments raised by learned counsel for the appellant and his arguments are not otherwise supported by the judgments referred during the course of the arguments.
Accordingly, we find no reason to cause interference in the order passed by the trial Court. The appeal is accordingly dismissed.
(BANWARI LAL SHARMA),J (M.N. BHANDARI),J
S. Kumawat/13
(Downloaded on 05/06/2021 at 09:22:08 PM)
Powered by TCPDF (www.tcpdf.org)