Rajasthan High Court - Jaipur
Ram Rai And Anr. vs State Of Rajasthan on 12 March, 2004
Equivalent citations: RLW2004(4)RAJ2640, 2004(3)WLC246
JUDGMENT Shiv Kumar Sharma, J.
1. Appellant Ram Rai and his wife appellant Shanti Devi seek to quash the judgment dated June 16, 2000 of the learned Sessions Judge Jaipur District rendered in Sessions Case No. 87/1997 whereby they were convicted and sentenced as under:-
Ram Rai:-
Under Section 302 IPC to suffer Imprisonment for life and fine of Rs. 1000/ in default to further suffer rigorous imprisonment for one year. Under Section 201 IPC to suffer Rigorous Imprisonment for two years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for three months. Shanti Devi: Under Section 201/34 IPC to suffer Rigorous Imprisonment for for two years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for three months. Substantive sentences were directed to run concurrently. 2. Brief facts are these:-
On March 31, 1997 at 9.35 PM one Nanag Ram (P.W.5) informed the SHO Police Station Chaksu that a bag was floating in the well of Jatiji. The SHO rushed to the spot and got the bag out of the well. The bag contained a dead body which was identified as of Abdul Rashid. A written report thereafter was handed over by Mahboob to the SHO with the averments that on March 28, 1997 when he last saw Abdul Rashid, appellant Ram Rai was with him. The Police Station Chaksu registered case under section 302/201 IPC- and proceeded to investigate the case. Dead body was subjected to post mortem, statements of witnesses under Section 161 Cr.P.C. were recorded, the appellants were arrested and on completion of investigation charge sheet was filed., In due course the case came up for trial before the learned Sessions Judge, Jaipur District, Charges under Section s 302, 201, 302/34 and 201/34 IPC were framed against the appellants who denied the charges and claimed trial. The prosecution in support of its case examined as many as 18 witnesses. Thereafter explanation of the appellants under Section 313 Cr.P.C. was recorded. No defence witness was produced by the appellants. The learned Trial Judge on hearing the final submissions convicted and sentenced the appellants as indicated above.
3. We have heard the rival submissions and scanned the record.
4. The case of the prosecution is based on circumstantial evidence and the learned trial court found that the chain of circumstances was so complete that it did not leave any reasonable ground for the conclusion consistent with the innocence of the appellants. According to the learned trial Judge the appellants were guilty for having committed the offence.
5. Since in the statement under Section 313 Cr.P.C, the appellant Ram Rai admitted to have killed the deceased, we proceed to consider the statements of appellants Ram Rai and Shanti Devi. Appellant Ram Rai in his statement under Section 313 Cr.P.C. stated thus:-
^^29-3-97 dks vCnqy jlhn 'kke ds 8-30&9-00 cts esjs ?kj vk;k Fkk mlds ikl ,d 'kjkc dh cksry Fkh eSa o esjh ifRu 'kkfUr ?kj ij Fks vCnqy jlhn us eq>s dgk fd og esjs ;gk¡ cSBdj 'kjkc ih;sxk eSus euk Hkh fd;k ysfdu T;knk dgus ij eSa eku x;k vkSj mls eSaus fxykl ykdj fn;k jlhn us 'kjkc ih o eq>s Hkh 1&2 isx fn;k mlds ckn jlhn us esj ;gkW [kkuk [kk;k rFkk eq>s iku ykus cktkj Hkst fn;k A eSa] cktkj x;k rc rd nqdkusa cUn gks pqdh Fkh yxHkx 11 cts jkr dks eSa okfil ?kj vk;k rc jlhn esjs ifRu 'kkfUr ds lkFk laHkksx dj jgk Fkk eSaus dgk fd ;g D;k dj jgk gS rc mlus eq>s xkfy;ka nh o eq>s fxjkdj esjk daB idM+ fy;k eSa NViVkus yxk rc esjk gkFk V;wc esa j[ks vkStkjksa ij pyk x;k o esjs gkFk esa jkih vk xbZ ftldks eSaus jlhn ds 'kjhj ij dbZ ckj ekjk rc jlhn ogha <sj gks x;k o rc eSa mlls NwVk bl ?kVuk ds oDr 'kkfUr cslq/k Fkh jkr dks 3 cts jlhn dh yk'k dks cksjh esa iSd dj lkbZfdy ij j[kdj trhth dh dksBh esa Mky vk;k A** Appellant Shanti Devi in her statement stated as under:-
^^?kVuk ds fnu jlhn gekjs ?kj vk;k Fkk A mlus ogka 'kjkc ihdj [kkuk [kk;k o esjs ifr dks iku ysus Hkst fn;k rFkk ihNs ls esjs diM+s QkM+ fn;k eqag nck fn;k rFkk esjs lkFk cqjk dke fd;k brus es esjk ifr vk x;k ftlds }kjk dgus ij dh D;k djrk gS jlhn us esjs ifr dks fxjkdj xyk nck;k rc esjs ifr us jkih dh jlhn ds ns ikM+h nsj ckn eq>s gks'k vk;k rc eSaus jkih esjs ifr ds gkFk esa ns[kh Fkh A jlhn dh yk'k dks ysdj esjs ifr gh x;s Fks eSa ugha xbZ A**
6. Section 313 Cr.P.C. provides for examination by the Court of accused persons. It is based on the principle involved in the maxim audi alteram partem, namely, that no one should be condemned unheard. This section does not purport to be only in the interest of the accused, its object is to enable the accused to explain any circumstances appearing against him in the evidence. The intention of the provision is for furtherance of justice and to enable the court to decide the question of the guilt of the accused. The accused has a right to make a statement under this Section and it has to be taken for what it is worth. The statement of the accused recorded under Section 313 Cr.P.C. can not be ignored lightly and has to be given due weight and adequate emphasis while recording the guilt against him. Such a statement may not be a sacrosanct but certainly it deserves consideration. What the prosecution has adduced incriminating evidence which is acceptable, the version of the accused in his statement under Section 313 Cr.P.C. could be read along with the evidence and considered in appreciating the prosecution evidence and ascertaining its credibility. In Narain Singh v. State of Punjab, 1964 (1) Cr.L.J. 730 (SC), the Apex Court held that if the statement of the accused amounts to confession and it it is true and voluntary, it is sufficient for a conviction even though the prosecution evidence as to his guilt is totally disbelieved. In State of Maharashtra v. Sukhdeo Singh and Anr., AIR 1992 SC 2100, their Lordships of the Supreme Court indicated that court can act on the admission or confession made by the accused in his statement recorded under Section 313 Cr.P.C.
7. As earlier noticed that appellant Ram Rai in his statement under Section 313 Cr.P.C, stated that on March 29, 1997 Abdul Rashid with a bottle of liquor came to his house at 8.30-9PM. At that time he (Ram Rai) and his wife Shanti were in the house. Abdul Rashid and Ram Rai both had drinks and dinner. Rashid then asked Ram Rai to bring betel from the Market. Ram Rai went to the Market and when came back around 11.00 PM, he found Rashid committing sexual intercourse with Shanti. On being protested by Ram Rai, Rashid abused him, pushed him down and squeezed his throat. While struggling, Ram Rai somehow arranged to pick Ranpi (cutting instrument) and inflicted blows with it on the person of Rashid as a result of which Rashid died. At that time Shanti was unconscious. Ram Rai then kept the dead body in a bag and carried it on the cycle and pushed the bag down in the Jatiji Ki Kothi.
8. Appellant Shanti in her explanation under Section 313 Cr.P.C. stated that on the date of incident Rashid came to their house and consumed liquor there. After having dinner he sent her husband to the market to bring betel and then torn her clothes and raped her. In the meanwhile her husband returned from the market and asked Rashid as to what was he doing. Rashid then pushed her husband down and squeezed his throat. Her husband in retaliation gave blows with Ranpi on the person of Rashid. Her husband himself had carried away the dead body and she did not accompany him.
9. The statement of appellant Ram Rai amount it confession and it appears to be true and voluntary. Reading the said statement along with he prosecution evidence and the statement of co- appellant Shanti Devi, we find that it requires to be given due weight. Ramesh (PW. 18), who was salesman in the liquorshop, deposed that Abdul Rashid and Ram Rai on March 29, 1997 together came to his shop and purchased liquor. Poonam Chand Bishnoi, SHO, PS Chaksu (P.W.17) deposed that on the basis of disclosure statement of Ram Rai he got recovered 'Ranpi' allegedly used in commission of the crime. Ranpi was found stained with human blood as per FSL report Ex.P-47. Cycle and Niwar recovered at the instance of Ram Rai were also found stained with human blood. Suman Kumar Bose (PW.12) deposed that he put bandage on the thumb of left hand of Ram Rai in the last week of March 1997. The facts so established by the prosecution are consistent only with the hypothesis of the guilt of the appellant Ram Rai and chain of evidence is complete and it goes to show that in all human probability the crime must have been done by the appellant Ram Rai.
10. It is the primary principle of criminal law that the onus of proving the charge against the accused rests upon the prosecution and never shifts, and it lies upon the prosecution to establish, beyond reasonable doubt the guilt of the accused. Before the accused can be convicted under Section 302 IPC, it is the duty of the prosecution to prove such intention or knowledge as is mentioned in Section 300 IPC Under Exception 1 to Section 300 IPC, culpable homicide is not murder if the offence cause death of the person who gave the provocation or that of any other person by mistake or accident provided the provocation was gave and sudden and by reason of the said provocation the offender was deprived of his power of self-control and the offence was committed during the continuance of deprivation of the power of self-control. The applicability o the doctrine of provocation rests on the fact that it brings about a sudden and temporary loss of self-control. The test applied is the conduct of a reasonable person in circumstances which give rise to grave and sudden provocation. Before an accused can draw any benefit from Exception I to Section 300 IPC, there should be some circumstance to indicate that the act of the accused was done in the same transaction in which he received the grave and sudden provocation. It is trite that a person finding his wife and her paramour in flagrant delicto receives the highest provocation and if he kills one or both he is entitled to the benefit of exception. There can be no doubt that the compromising position in which the accused found the deceased with his wife gave the accused the grave and sudden provocation.
11. Since the prosecution could not establish the motive behind the crime of appellant Ram Rai, we see no reason to disbelieve the explanation of appellant Ram Rai that the deceased committed sexual intercourse with his wife Shanti and after his sudden arrival when appellant made protest, the deceased pushed appellant down and squeezed his throat. It is thereafter that the appellant Ram Rai inflicted blows with Ranpi on his person and killed him. We find that appellant Ram Rai committed the act in the same transaction in which he received the grave and sudden provocation and provisions contained in Exception I to Section 300 IPC are attracted in the facts and circumstances of the case and Ram Rai is guilty of having committed offence under Section 304 part II IPC. Since Ram Rai himself confessed that he alone carried the dead body on the cycle and pushed it down in Jatiji Ki Kothi, we are of the view that he alone can be held guilty under Section 201 IPC and appellant Shanti Devi cannot be held guilty for having committed offence under Section 201/34 IPC and she is entitled to benefit of doubt.
12. For these reasons we dispose of the appeal in the following terms:-
(i) Appeal of appellant Ram Rai is partly allowed. His conviction under Section 302 is set aside. Instead he is convicted under Section 304 Part II IPC. Appellant Ram Rai is in jail since April 1, 1997 and in our view the ends of justice would be met in sentencing him to the period already undergone by him in confinement. Conviction of appellant under Section 201 IPC is however maintained. While reducing the fine to Rs. 100/- only we maintain the sentence awarded to him by the learned trial Judge. The substantive sentences are to run concurrently.
(ii) Appeal of appellant Smt. Shanti is allowed and she stands acquitted of the charge under Section 201 read with 34 IPC. Appellant Shanti is on bail. She need no surrender and her bail bonds stand discharged.
(iii) Appellant Ham Rai who is in jail shall be set at liberty on depositing the fine, if not required to be detained in any other case.