Rajasthan High Court - Jaipur
Smt Pushpa Devi vs State Of Rajasthan Through Pp on 20 January, 2022
Bench: Pankaj Bhandari, Chandra Kumar Songara
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 386/2016
Smt. Pushpa Devi wife of Shri Mahaveer Singh, resident of Hingoli
Police Station Kumher District Bharatpur (Rajasthan)
(At present confined in the Sewar Jail, Bharatpur).
----Accused-Appellant
Versus
State of Rajasthan through Public Prosecutor
----Respondent For Appellant(s) : Mr. Anil Upman, Advocate For Respondent(s) : Mr. Javed Choudhary, Additional Government Advocate/Public Prosecutor HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE CHANDRA KUMAR SONGARA Judgment Date of Judgment 20th January, 2022 Per : Chandra Kumar Songara, J. :
*** Instant criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 has been preferred on behalf of the accused- appellant, namely Smt. Pushpa Devi wife of Shri Mahaveer Singh, assailing the impugned judgment of conviction and the order of sentence dated 31.03.2016 passed by the Court of learned Additional District & Sessions Judge, No.3, Bharatpur, (for short 'the trial Court'), in Sessions Case No.124-A/2012, whereby the appellant-accused, vide a separate order of even date, was convicted for commission of offence punishable under Section 302 of Indian Penal Code and sentenced to undergo life imprisonment with a fine of Rs.50,000/- (Downloaded on 24/01/2022 at 09:55:23 PM)
(2 of 11) [CRLA-386/2016] and in default of payment of fine, to further undergo six months of rigorous imprisonment.
The brief facts giving rise to this appeal are as follows :-
Complainant - Ravindra (PW-3) had submitted a written- report (Exhibit-P/2) to the S.H.O. Police Station, Kumher, District Bharatpur alleging therein that on 19.02.2012 his father Kishan Singh had gone to the house of Mahaveer Singh to recover the loan amount of Rs.1,50,000/- but did not return and on 20.02.2012 in the morning he was informed through mobile cell by Pushpa wife of Mahaveer Singh that she and her son tried to wake up his father to give him a cup of tea but he was found unconscious, so he should come immediately. Upon this information, he alongwith Ashok reached to the house of Mahaveer and found his father dead on the first floor of the house. Gajendra and Pushpa were standing near the bed where the dead-body of Kishan Singh was lying. He informed the Police about the alleged incident. He further stated that Pushpa, Gajendra and others hatched a conspiracy and murdered his father.
On the aforesaid information, an F.I.R. bearing registration No.65/2012 (Exhibit P-14) was lodged at Police Station Kumher, District Bharatpur for commission of offence punishable under Section 302 of I.P.C. After completion of investigation, Police presented the charge- sheet against the accused persons.
Charge was framed by the learned trial Court for commission of offence punishable under Section 302 of I.P.C. against the accused-appellant. She pleaded not guilty to the charge and claimed trial.
In order to prove its case, the prosecution examined as many as nineteen-witnesses, during trial. The accused when examined (Downloaded on 24/01/2022 at 09:55:23 PM) (3 of 11) [CRLA-386/2016] under Section 313 of Cr.P.C., after closing of the prosecution evidence, pleaded that she had been falsely implicated in the present case and Kishan Singh was on the upper floor of her house, which is open place and there is a possibility of murder being committed by some unknown persons. She chose to lead evidence in her defence but did not produce any defence evidence.
After hearing the arguments advanced by the learned Public Prosecutor appearing for the State & learned counsel for the accused, and after appreciating the evidence available on record, the learned trial Court proceeded to convict and sentenced the accused-appellant Smt. Pushpa Devi, as stated herein-above. Hence, the present appeal.
Learned counsel appearing for the appellant-accused has submitted that nothing was specifically stated by the complainant in his examination and denied the entire story of the prosecution and as such, the entire case of the prosecution is doubtful. Counsel has further submitted that there is no applicability of Section 106 of the Indian Evidence Act in this matter because deceased was found on upper floor of the house, which is open place and easy access was available to everyone through the stairs as other persons were also present there at the time of alleged incident and the accused-appellant was not alone, so in these circumstances, the learned trial Court has committed a grave illegality in invoking the provisions of Section 106 of the Indian Evidence Act against the accused-appellant and without considering the facts & circumstances of this case, the material and legal aspect of the case, convicted the accused-appellant Smt. Pushpa Devi. Lastly, counsel has prayed that the present appeal filed on her behalf be allowed by acquitting the appellant of the charge and setting aside the impugned judgment.
(Downloaded on 24/01/2022 at 09:55:23 PM)
(4 of 11) [CRLA-386/2016] Learned counsel appearing for the State has opposed the submissions advanced by the learned counsel appearing for the accused-appellant and urged that as per the statements of the prosecution witnesses and the material made available on record, the prosecution has proved its case beyond reasonable doubt as the impugned judgment passed by the learned trial Court is based on cogent and sound reasons. Hence, the impugned judgment against the accused-appellant Smt. Pushpa Devi does not warrant any interference of this Court in the appeal.
We have given our thoughtful consideration to the rival submissions made by the learned counsel appearing for the parties and gone through the impugned judgment as well as material made available on record.
The prosecution has examined as many as nineteen- witnesses, whereas the accused-appellant has not examined any witness in her defence.
Mahendra Singh (PW-2) and Amar Singh (PW-4) deposed about the memo of Panchnama of deceased Kishan Singh vide Exhibit- P/1. Devi Singh (PW-5) and Jaswant (PW-6) deposed about the memo of site-plan of the place of incident vide Exhibit-P/4. Rajesh Singh (PW-
7) and Kishanpal Singh (PW-10) deposed about the memo of photography of deceased and place of incident vide Exhibit- P/5.
Exhibit-P/6 is the seizure memo of two sealed pack viscera Jar of the deceased Kishan Singh. Exhibit-P/7 is the arrest memo of the accused Smt. Pushpa Devi. Jagdish (PW-14) deposed about the acknowledgment receipt of S.F.S.L. Jaipur vide Exhibit-P/11. Bachchu Singh (PW-19) deposed about the photographs with the negatives vide Exhibit-P/15 to P/21 respectively. Thus, all above-mentioned nine prosecution witnesses are formal witnesses.
(Downloaded on 24/01/2022 at 09:55:23 PM)
(5 of 11) [CRLA-386/2016] Chameli (PW-8), Dharmveer (PW-9), Mahesh (PW-12), Ishwari Prasad (PW-13), Rajendra (PW-15) and Geeta (PW-16), all six prosecution witnesses are hostile witnesses.
Dr. H.S. Nawal (PW-18) deposed about the Post Mortem Report of deceased Kishan Singh vide Exhibit-P/24. He further deposed that as per opinion of the Medical Board, the cause of death was due to Asphyxia. The said opinion marked as G to H, reads as under :-
"From all above post-mortem findings, we Board Members have opinion that the cause of death is due to Asphyxia, due to manual strangulation till chemical and Toxicological examination report of viscera preserved received from F.S.L. Jaipur. The duration of death b/w 6 Hrs. to 24 Hrs., from the time of post-mortem. All injuries are ante-mortem in nature".
In the cross-examination, it was admitted by Dr. H.S. Nawal (PW-18) that in his opinion the strangulation was manual. As per his opinion, the deceased was healthy and well built, who could only be throttled by able-bodied person. The sample of deceased were sent to the S.F.S.L. Jaipur for alcohol and intoxication report. The report is on record. As per report, on chemical examination, portions of viscera from two packets gave negative tests for metallic poisons, ethyl and methyl alcohol etc. It could not be said that in this case, whether deceased was awake or sleeping at the time of throttling.
Jaya Singh (PW-17) is the Investigating Officer of the case, who deposed about the investigation of the case. She further deposed about the written-report vide Exhibit-P/2, F.I.R. No.65/2012 registered at Police Station Kumher vide Exhibit-P/14, memo of Panchnama of deceased Kishan Singh vide Exhibit-P/1, memo of site-plan of the place of incident vide Exhibit-P/4, memo of photography of deceased and place of incident vide Exhibit-P/5, seizure memo of two sealed pack viscera Jar of deceased Kishan Singh vide Exhibit-P/6, arrest memo of accused Smt. Pushpa Devi vide Exhibit-P/7, acknowledgment receipt of (Downloaded on 24/01/2022 at 09:55:23 PM) (6 of 11) [CRLA-386/2016] S.F.S.L. Jaipur vide Exhibit-P/11, photographs with the negatives vide Exhibit-P/15 to P/21, Inquiry report of accused Smt. Pushpa Devi vide Exhibit-P/22 and the Final Report submitted by the S.H.O. vide Exhibit- P/23.
In her cross-examination, Investigating Officer (PW-17) admitted that during investigation, she had not received the mobile of Kishan Singh from the house of accused Pushpa. During investigation, Ravindra son of Kishan Singh did not provide any documentary evidence of debt of Rs.1,50,000/- to be collected from Mahaveer Singh, husband of Pushpa, as he stated in the F.I.R. As per the investigation, Kishan Singh had good relations with Pushpa and they used to travel together. There was a kitchen on the upper floor of the house, which had enough space to use the same for other purpose. The second floor on which dead-body was found was open from all sides but the room was closed. It is true that the deceased was a healthy person of forty-five years of age but with the body shaped like cylinder. There was no injury on the body of the accused-appellant at the time of arrest.
Ashok Kumar (PW-1) deposed that when he and Ravindra reached at the place of incident "Ravindra said to Pushpa that she has killed his father. On this, Pushpa replied that she had made a mistake and whatever happened, had happened and she would return their money. Kishan Singh was murdered by Pushpa, her son and her mother-in-law due to the loan amount.
In his cross-examination, it was admitted by Ashok Kumar (PW-1) that he did not know Pushpa before the incident and when they reached the house where Kishan Singh was lying dead, none other than, Pushpa, her son, her sister and her mother-in-law were present. When Ravindra asked to Pushpa, she replied sorry Bhaiya, she made a (Downloaded on 24/01/2022 at 09:55:23 PM) (7 of 11) [CRLA-386/2016] mistake, whatever happened, had happened, why it was not written in Exhibit-D/1, he could not say anything.
It reveals from the cross-examination of said prosecution witness (PW-1) that his testimony is contradictory, as per Exhibit-D/1 statement recorded under Section 161 of Cr.P.C. Furthermore, his aforesaid examination-in-chief is also not reliable, as it is not supported by Ravindra (PW-3) in his testimony, who is the complainant and the son of the deceased Kishan Singh.
Ravindra (PW-3) who is the complainant and son of the deceased deposed that at around one year ago i.e. 19.02.2012, his father Kishan Singh had left for Hingoli at about 10:00 A.M. to collect his debt of Rs.1,50,000/- from Mahaveer. On 20.02.2012 at around 08:00 A.M. he received a call from Pushpa from his father's phone and she told him that his father was not waking up when Pushpa and her son tried to wake him up for morning tea. Pushpa asked him to come as soon as possible to see his father. Upon receiving this information, Ashok Kumar (PW-1) and he left for Mahaveer's home in Hingoli and where they saw that his father was lying dead on the bed on the upper floor of the house. Rajendra & Pushpa were standing beside the dead- body of his father. After this, he informed his family and called the Police. When Police arrived on the spot, he told them about the incident and "Panchnama" was prepared vide Exhibit-P/1, which contains his signatures at two places i.e. E to F. Photography of the spot was conducted by the Police, which is a part of the record. Police brought the dead-body to Kumher and he lodged a report vide Exhibit-P/2, which contains his signature at two places i.e. A to B. The post-mortem was conducted and the dead-body of his father was handed over to him vide Exhibit-P/3, which contains his signatures from A to B. The site- plan of the place of incident was also prepared vide Exhibit-P/4, which (Downloaded on 24/01/2022 at 09:55:23 PM) (8 of 11) [CRLA-386/2016] contains his signatures from A to B. He did not find the debt money for which his father had gone nor he saw any injury on his body.
In his cross-examination, it was admitted by Ravindra (PW-
3) that his family had no enmity with Pushpa. He received the dead- body of his father and cremated him and did the final rites. After this, he tried to inquire at Hingoli and it came to his knowledge that on the night of alleged incident, some miscreants/criminals had gone to the upper floor of the house and quarrelled with his father Kishan Singh. It is true that Pushpa was not a suspect in a murder case of his father. He had given similar statement to the S.H.O. that as per his knowledge, Pushpa is innocent in this case.
From the above appreciation of evidence, it is clear that in the present case, the prosecution examined as many as nineteen- witnesses during trial. Nine prosecution witnesses are formal witnesses and six prosecution witnesses are hostile witnesses. Testimony of Ashok Kumar (PW-1) is not reliable, as his statement is contradictory to the statement recorded under Section 161 of Cr.P.C. vide Exhibit-D/1 and not supported by Ravindra (PW-3) complainant.
Dr. H.S. Nawal (PW-18) deposed about the Post Mortem Report of deceased Kishan Singh vide Exhibit-P/24 and admitted in his cross-examination that the report gave negative tests for metallic poisons, ethyl and methyl alcohol etc. Jaya Singh (PW-17) being Investigating Officer of the case, deposed about the investigation of the case.
Ravindra (PW-3), who is the complainant and the son of deceased Kishan Singh. His testimony reveals that he has not seen any injury on the body of the deceased. Further, he has no doubt on Pushpa with regard to alleged murder of his father Kishan Singh. He further (Downloaded on 24/01/2022 at 09:55:23 PM) (9 of 11) [CRLA-386/2016] admitted in cross-examination that as per his knowledge, Pushpa is an innocent in this case.
Ravindra (PW-3) complainant and Jaya Singh (PW-17), Investigating Officer, both admitted in their cross-examination that the complainant Ravindra and his father Kishan Singh had no enmity with Pushpa.
Ravindra (PW-3) complainant admitted in his cross- examination that after funeral, the fact came to his knowledge that on the alleged night of incident, some miscreants came to upper storey of Pushpa's house and they had a scuffle with Kishan Singh. Jaya Singh (PW-17) Investigating Officer admitted in her cross-examination that the second storey was open from all the sides where the deceased was found. Ravindra (PW-3) deposed that Gajendra and Pushpa were in the house. Ashok Kumar (PW-1) admitted in his cross-examination that when they reached the house where deceased Kishan Singh was lying, none other than, Pushpa, her son, her sister and her mother-in-law were also present. Jaya Singh (PW-17) Investigating Officer admitted in her cross-examination that when she arrested Pushpa, she did not find any injury on her body. Dr. H.S. Nawal (PW-18) admitted in his cross- examination that as per post mortem report, deceased was healthy and well built, who could only be throttled by able-bodied person. As per his opinion, the strangulation was manual and he could not say that whether the throttling of deceased was done in the state of awakening or sleeping.
Therefore, there is no applicability of Section 106 of the Indian Evidence Act in this matter because deceased was found on the upper floor of the house, which is open place, and easy access is available to everyone through the stairs as other persons were also present and the accused-appellant was not alone, so in these (Downloaded on 24/01/2022 at 09:55:23 PM) (10 of 11) [CRLA-386/2016] circumstances, learned trial Court has committed an illegality in invoking the provisions of Section 106 of the Evidence Act against the accused-appellant.
It is clear that the prosecution has failed to prove the motive of the accused-appellant. Ravindra (PW-3) complainant, who is the son of the deceased does not specifically support the prosecution story. Nothing has been recovered from the accused-appellant. Jaya Singh (PW-17) Investigating Officer, did not find any injury marks on the body of the accused Pushpa, while arresting her. The testimony of Ashok Kumar (PW-1) is not reliable. Other six prosecution witnesses have also not supported the case of prosecution and turned hostile. Hence, the prosecution has failed to prove the complete chain of circumstantial evidence.
The learned trial Court has not properly appreciated the cross-examination of the complainant, Investigating Officer and other aforesaid prosecution witnesses.
In view of above discussions, we are of the firm opinion that the prosecution has miserably failed to prove the charge levelled and also failed to establish the guilt of accused-appellant beyond any reasonable doubt. Therefore, the appellant is liable to be acquitted of the charge under Section 302 of Indian Penal Code by giving her the benefit of doubt.
Consequently, the present appeal is allowed. The impugned judgment of conviction and the order of sentence dated 31.03.2016 passed by the Court of learned Additional District & Sessions Judge, No.3, Bharatpur is set aside. The appellant Smt. Pushpa Devi is acquitted of the charge under Section 302 of I.P.C. The appellant Smt. Pushpa Devi, who is in custody, be released forthwith, if not required in any other case.
(Downloaded on 24/01/2022 at 09:55:23 PM)
(11 of 11) [CRLA-386/2016] Keeping in view of the provisions of Section 437-A of the Code of Criminal Procedure, 1973, the accused-appellant, namely Smt. Pushpa Devi wife of Shri Mahaveer Singh is directed to forthwith furnish a personal bond in the sum of Rs.50,000/- and a surety bond in the like amount, before the Registrar (Judicial) of this Court, which shall be effective for a period of six months with the stipulation that in the event of filing of Special Leave Petition against the judgment or on grant of leave to appeal, the accused-appellant Smt. Pushpa Devi wife of Shri Mahaveer Singh, on receipt of notice thereof, shall appear before the Hon'ble Supreme Court.
(CHANDRA KUMAR SONGARA),J (PANKAJ BHANDARI),J ASHOK/1 (Downloaded on 24/01/2022 at 09:55:23 PM) Powered by TCPDF (www.tcpdf.org)