Rajasthan High Court - Jodhpur
Smt. Sumitra vs State on 30 May, 2008
Author: Prakash Tatia
Bench: Prakash Tatia
D.B.Cr.Appeal No.402/2002
Smt. Sumitra vs. State & connected Appeal
1
IN THE HIGH COURT OF JUDICATUARE FOR RAJASTHAN AT
JODHPUR.
JUDGMENT
(1) Smt. Sumitra vs. The State of Raj.
D.B. Criminal Appeal No.402/2002
(2)The State of Raj. vs. Vandhna @ Pinki
& ors.
D.B. Criminal Appeal No.756/2002
against the judgment dated 4.4.2002
passed by the learned Addl. Sessions Judge(Fast
Track), Ratangarh District Churu in Sessions
Case No.14/2002.
Date of Judgment: May 30th ,2008.
PRESENT
HON'BLE MR. PRAKASH TATIA, J.
HON'BLE MR. CHAND MAL TOTLA,J.
Mr. K.K. Kalia, for the appellant in Appeal No.402/02 and for
the respondents in Appeal No.756/02.
Mr. J.P.S. Choudhary, P.P. for the State.
Mr. M.K. Garg , for the complainant.
BY THE COURT( Per Hon'ble Mr.Tatia,J):
The D.B.Criminal Appeal No.402/02 has been preferred by appellant Sumitra against the judgment and order dated 4.4.2002 passed in Sessions Case No.14/2002(6/99) by the D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 2 court of Addl. District Judge( Fast Track), Ratangarh District Churu wherein the appellant Sumitra has been convicted for charge under Section 302, IPC and has been sentenced to undergo life imprisonment with fine of Rs.2000/- and in default thereof, to undergo two years' rigorous imprisonment. By the same judgment and order, co-accused Bhojraj, appellant's son and daughter Vandna and Sanjay were acquitted for the charge under Section 302 read with 120B, IPC and in alternative, for charge under Section 302 read with Section 34, IPC, and against the order of acquittal of above three accused, the State has preferred D.B.Criminal Appeal No.756/02.
The facts of the case are that on 10.11.1998 at 7.30 p.m., the complainant Choth Mal submitted a written report in the Police Station, Churu alleging that he received telephone call from the appellant Sumitra at his shop and the appellant Sumitra told him that she wanted to talk with complainant's son Satya Narayan. Satya Narayan after talking on telephone, told the complainant that he has been called by the appellant at Churu, therefore, he is going to Churu. In D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 3 the complaint, it is mentioned that the appellant had relations (indicated as illicit) with Satya Narayan since long time and since last 2-1/2 years they are not having cordial relation. The complainant told his son to not to go to Churu but he did not obey and went to Churu. The complainant had some doubt, therefore, after some time, he went to Churu to find out his son Satya Narayan. When he reached to the house of the appellant, he found that the motor cycle No. RJ18/0040 of Satya Narayan was lying out side the house of the appellant. He enquired from neighbour Nath Mal and others about Satya Narayan, upon which he was told that they saw Satya Narayan going in the house of the appellant but have not seen Satya Narayan coming out from the house. However, they stated that they heard voice crying "save save". In the complainant, it is also alleged that Bhojraj,brother-in-law (sister's husband) of appellant Sumitra, also gave threat to Satya Narayan that he will kill Satya Narayan. In the complaint, the complainant stated that he has doubt that his son Satya Narayan might have been murdered by appellant Sumitra and his son Sanjay with the help of her D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 4 brother-in-law Bhojraj Sharma. On receipt of this written complainant FIR No.360/98 under Section 302/34, IPC was registered and investigation started. During investigation, map (Ex.P.3) of site and site report(Ex.P.3A) were prepared in the presence of complainant Choth Mal and one Ramjilal Soni. The dead body of victim Satya Narayan was recovered from the plot of one Shanker Lal which is adjoining to the house of the appellant, which is separated by wall of 6 ft. The report about the body of the deceased was prepared in the presence of complainant and witness Sohan Lal which is Ex.P.4 in the mortuary of the hospital of Churu. Panchnama (Ex.P.5) of the dead body of Satya Narayan was prepared in the presence of witnesses Sohan Lal, Radhy Shyam Soni, Ramjilal Soni and Sanwar Mal Soni. The accused Sumitra was arrested on 11.11.1998 for which arrest memo Ex.P.15 was prepared. Accused Vandna was also arrested on 11.11.1998 and her arrest memo Ex.P.16 was prepared. The accused Sanjay son of the appellant Sumitra was arrested on 19.2.1999 vide arrest memo Ex.P.31 and Bhojraj was arrested on 22.7.1999 vide arrest memo Ex.P.27. On the basis of information given by the D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 5 appellant under Section 27 of the Evidence Act, vide Ex.P.35 dated 13.11.1998, one sari and one long piece of cloth were recovered from appellant Sumitra and recovery memo Ex.P.9 was prepared. The sari and cloth had blood stains. As per the information Ex.P.36 given by co-accused Vandana dated 13.11.1998, one iron chain and bunch of keys were recovered from the room of the house of accused appellant Sumitra and her daughter Vandana lying in iron box and recovery memo Ex.P.10 was prepared. The appellant Sumitra's son Sanjay was arrested on 19.2.1999 and he gave information under Section 27 of the Evidence Act on 21.2.1999 which is Ex.P.28 and in pursuance of that information, a telephone wire was recovered on 21.2.1999 itself, for which seizure memo Ex.P.24 was prepared. Shirt, pent,undergarments and motor cycle of deceased of deceased were also recovered. The dead body of the victim was sent for post-mortem and post-mortem report Ex.P.18 was obtained from the doctor and articles were sent to the Forensic Science Laboratory and from where reports Ex.P.37 and Ex.P.38 obtained. Statements of the witnesses were recorded and thereafter challan was filed D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 6 against the four accused Smt. Sumitra, Miss Vandana, Sanjay and Bhojraj and charge under Section 302 read with Section 120B and in alternative, under Section 302 read with Section 34, IPC were framed, which were denied by all the accused and they sought trial.
In the trial, the prosecution produced witnesses, PW-1 Choth Mal, father of deceased, PW-2 Dhanne Singh and PW-3 Nath Mal, neighbours of the house of the appellant Sumitra, PW-7 Radhey Shyam, sister's uncle-in-law of victim Satya Narayan, who stated that he accompanied the victim Satya Narayan on motor cycle to appellant's house. Statements of other witnesses including of Daulat Ram, Investigating Officer (PW-10) was also recorded in the trial court. The documentary evidence, referred above, as well as the articles were produced in the trial court.
The statements of the accused were recorded under Section 313, Cr.P.C. wherein the accused denied the charge and the appellant Sumitra stated that she was not at the residence and she was in the office where she was attending the meeting of old person's pension matter. She stated that D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 7 the victim Satya Narayan was a thief and several cases were going on against him in the courts. Accused Bhojraj stated that he is resident of village Bahal and he was not present at the scene of occurrence and he was not in Churu and he has wrongly been implicated in this case. In defence, witness DW- 1 Ashok Kumar Sharma was examined and documents Ex.D.1 to Ex.D.3 were got exhibited and one certificate Ex.D.4 was also produced by the defence. After appreciation of evidence, the trial court convicted the appellant Sumitra alone that too for the charge under Section 302, IPC and accused Sumitra was acquitted from charge under Section 120B, IPC and the trial court acquitted all other accused.
The learned counsel for the appellant vehemently submitted that the entire story against the appellant Smt. Sumitra is concocted one. In fact, the written report was not submitted by complainant Choth Mal on 10.11.1998 and in fact he came on the scene of occurrence after one day, after police found the body of the victim Satya Narayan. He was informed by the police through wireless message from Churu through their counter part at village Bisau. The complainant D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 8 did not saw the victim's motor cycle out side the house of the appellant and was not present when the dead body of his son was recovered by the police. It is submitted that if the complainant would have reached to the scene of occurrence before the police reached, then there was no reason for police for sending wireless message to the family members of deceased Satya Narayan. It is also submitted by the complainant Choth Mal that the police reached on the scene of occurrence on the same day, the date on which the incident occurred and that too by 6 p.m. The police entered the house of the appellant Sumitra and recovered belt, shoes, shocks and one cotton-sheet etc. and also took blood stained clothes which were cut and separated at the police station by blade. On the same day, bunch of keys and one chain was recovered by the police. Contrary to it, as per the site map, site inspection report as well as the recovery memos, the recoveries were not made on the date of incident but have been shown as affected after some days. The complainant PW-1 Choth Mal's statement was contradicted materially by the statement of PW-2 Dhanne Singh, who has deposed that D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 9 the articles were recovered from the different place and in different manner and not as stated by PW-1 Choth Mal. PW-12 Mohan Lal, Investigating Officer, in his statement, stated that the articles were recovered by him not on the date of reporting the matter to the police by the complainant but were recovered on the next day. The bunch of keys and chain were recovered from Vandana, one of the co-accused. Therefore, he contradicted the statements of PW-1 Choth Mal and PW-2 Dhanne Singh. It is also submitted that PW-1 Choth Mal stated that police reached on the place of occurrence on the same day and found the house of appellant closed from in side. The police tried to get the door opened from accused Sumitra but the door was not opened then the police persons from the wall of the house reached in the house and this statement has been contradicted by PW-12 Mohan Lal, Investigating Officer, who stated that when he knocked the house of Smt. Sumitra, she opened the gate. PW-1 Choth Mal stated that appellant Sumitra and her daughter both were arrested by the police on the same day and that fact has been contradicted by PW-12 Mohan Lal, Investigating Officer. The D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 10 learned counsel for the appellant pointed out that the timing given by complainant PW-1 Choth Mal of his starting from his village and reaching to Churu clearly casts doubt upon the credibility of complainant PW-1 Choth Mal. It is submitted that the distance between village Bisau and Churu is only 10- 12 kms. and if complainant started from Bisau to reach Churu at a distance of 10-12 kms., then he would not have taken so much of time so as to reach there by 5 p.m. It is submitted that the complainant and his family members were called by the police through wireless message, is as per the complainant's real brother-in-law Sohan Lal.
The learned counsel for the appellant also submitted that it is highly improbable that the complainant Choth Mal heard the talk between the appellant and the deceased at any point of time and it is highly improbable that in short period, the father of a person will start searching his son when his son's antecedents are of criminal nature and who had alleged illicit relations with the appellant Smt. Sumitra. The complainant could not have any doubt of any untoward incident to his son so as to compel him to start searching his D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 11 son in a very short period of few hours only. It is also submitted that it is highly improbable that father of son will go to the house of his son's lady with whom his son may have illicit relations. Therefore, the complainant's statements that he heard some talk between the appellant and Satya Narayan from distance, is only to put the life in a false case. In sum and substance, PW-1 Choth Mal was not present on 10.11.1998 at the place of occurrence nor he saw the motor cycle of deceased Satya Narayan lying in front of the house of appellant Smt. Sumitra nor he talked with any of the villagers. The report Ex.P.1 was obtained from the victim's father PW-1 Choth Mal by the police subsequent to tracing the body of deceased Satya Narayan to implicate appellant and her entire family.
It is also vehemently submitted that complainant PW-1 Choth Mal in his court's statement falsely implicated co- accused Vandana, whose name was not given by him in the written report Ex.P.1. It is also submitted that the prosecution tried to implant the witnesses and that implant witness is Radhey Shyam, who stated that he was with the D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 12 deceased on motor cycle and reached to the house of appellant Smt. Sumitra. This fact has not been mentioned in Ex.P.1 and PW-7 Radhey Shyam's conduct is self-explanatory which exposes the said witness PW-7 Radhey Shyam wholly unreliable and therefore, his statement cannot be relied upon and further this is proof of concocting false story against the appellant by the prosecution. The learned counsel for the appellant also assailed the credibility in the statement of PW- 2 Dnanne Singh and pointed out that when any one is attacked, he may shout and cry for safety but will not shout the names of the assailants whereas PW-2 Dhanne Singh in his statement, stated that he heard the shouting of the deceased Satya Narayan who was shouting that Sumitra, Sanjay and Vandana are killing him. This statement was given just to see that none of the family members of the appellant Smt. Sumitra be speared. It is also submitted that the witness Dhanne Singh had ill-will against the appellant's entire family. It is submitted that if the conduct and the statement of the witness are found unnatural and against human conduct, then the statement of that witness is unreliable and it can be D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 13 presumed that he is a tutered witness. The conduct of witness Dhanne Singh hearings of voice of Satya Narayan from the house of appellant is also absolutely unnatural as he stated that when coming of voice from the house of appellant stopped, he simply went and sat with one Bajrang Lal. There one Nath Mal son of Satya Narayan came and he told him that Satya Narayan has been killed. It is also submitted that looking to the distance between the house of the appellant and Bajrang Lal, it is impossible that the witness Dhanne Singh would have heard anything or would have reacted in unusual manner where according to him, in his knowledge one person was killed in the house in his own Mohalla. It is also submitted that as per PW-2 Dhanne Singh, hearing the cries of Satya Narayan, the neighbours came on the roof of their houses and if it was so then all must have seen either killing of Satya Narayan by the appellant or at least must have seen throwing Satya Narayan in adjoining plot, whereas no such neighbour has been produced to say about killing by the appellant or throwing victim in the adjoining plot. He also stated that he saw one more person in the house of appellant Smt. Sumitra D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 14 but he did not saw the man coming out from the house of the appellant, then in the light of the statement of complainant himself, there was no opportunity to Smt. Sumitra to open the gate and send the man out from her house. The statement of PW-2 Dhanne Singh was contradicted by the statement of PW- 12 Mohan Lal, Investigating Officer, who stated that when the gate was opened, he found the appellant, her daughter and appellant's mother and one minor child in the house and none else. PW-2 Dhanne Singh also stated that the complainant Choth Mal came to house of the appellant on the next day and gave his introduction and asked about Satya Narayan then PW- 2 Dhanne Singh told about the incident. In view of above, Choth Mal has been implanted witness in all the recoveries memos etc. It is also submitted that the main witness Bajrang Lal was not produced in the court with whom Dhanne Singh was sitting. It is also submitted that looking to the total injuries on the body of the victim Satya Narayan and prosecution story that the victim was thrown in adjoining plot by the accused in injured condition then there would have been blood in the house of the appellant on the floor of the D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 15 house as well as on the wall of the appellant's house. The learned counsel for the appellant vehemently submitted that no recoveries were made by the prosecution during investigation. The motor cycle was not lying out side the house of the appellant and only evidence to prove presence of motor cycle of victim in front of the appellant is the statement of the complainant PW-1 Choth Mal and at the most, other witness who is close relative of the victim whose presence is doubtful, as of presence of complainant Choth Mal. It is also submitted that no independent witness was called by the investigating agency when the recoveries were made. There are serious contradictions in the evidence of the prosecution witness about the alleged recoveries of articles from the house of the appellant and the witnesses of the prosecutions contradicted the statements of their own witnesses. It is also submitted that the report given by the FSL cannot be believed in view of the fact that none of the prosecution witness stated that the articles were put in cover and were sealed on the spot. PW-12 Mohan Lal, Investigating Officer no where stated in his statement that they were put in D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 16 sealed cover and put the seal samples on the memos. There is no evidence that the articles were put in the Malkhana properly and there is no evidence that those articles were sent in proper manner to the FSL. The seal was not exhibited. It is submitted that sealing the articles and sending them to the FSL in sealed condition with sample seal is a condition necessary for relying upon the report of the FSL, without which the FSL report cannot be read against the accused. In view of the above, there is every possibility that the articles were tampered with. It is also submitted that the prosecution has shown recovery of one telephone wire from co-accused Sanjay from the house of appellant Smt.Sumitra but there is no evidence that telephone wire of the appellant was ever cut by any body. The appellant's son Sanjay was arrested as late as on 19.2.1999, whereas the incident occurred on 10.11.1998. In view of the above, it is fully proved that due to enmity, a false case has been launched against the appellant and her entire family and in that only one of the neighbours, who had inimical relations with the appellant's family, supported the prosecution case by his false evidence. It is also D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 17 submitted that the appellant has been convicted only on the basis of circumstantial evidence, whereas complete chain of events have not been established and proved by the prosecution.
It is submitted that no conviction can be based on mere suspicion howsoever strong it may be, as held by the the Hon'ble Supreme Court in the case of Babuda v. State of Rajasthan (AIR 1992 SC 2091) and in the case of Swinder Singh v. State of Punjab (AIR 1992 SC 669). Hon'ble the Supreme Court in the case of State of Rajasthan v. Taran Singh and another ( 2004 Cri.L.J. 654) held that if manner of incident given by the prosecution is doubtful and the place where the body was found which makes the defence version probable then the accused deserves to be acquitted on the basis of case of doubtful nature. It is also submitted that if it is found that the witnesses are tutered then they cannot be relied upon, as held by the Hon'ble Supreme Court in the case of Abdul Wahid v. State of Rajasthan (2004 Cri.L.J. 2850). It is also submitted that the Division Bench of this Court in the case of Rati Ram & ors. vs. State of Rajasthan (1993 Cr.L.R.(Raj.) 195) held D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 18 that it is duty of the prosecution to prove that the articles were sent in proper sealed cover to the FSL with sample of seal and if it is not proved then the report of FSL cannot be read against the accused.
The learned Public Prosecutor vehemently submitted that from the evidence of the witnesses produced by the prosecution, it is well established that the victim had illicit relations with the appellant Smt. Sumitra since long time and he used to visit the house of appellant Smt. Sumitra. The relations between appellant and the victim became strained and the victim's father Choth Mal clearly stated that he himself received telephone of appellant by which she called the victim to her house. The victim went to the house of the appellant along with his brother's son-in-law Radhey Shyam (PW-7) on motor cycle. There is no reason to disbelieve the statement of PW-2 Dhanne Singh, who fully corroborated the statements of PW-1 Choth Mal complainant and PW-7 Radhey Shyam. It is also submitted that the body of the deceased was recovered from the plot which is adjoining to the house of the appellant which is separated by a wall of 6 ft. only. The D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 19 appellant's blood stained sari was recovered and as per the FSL report (Ex.P.37), sari had blood of human origin and the same is the position with the mattress and piece of cloth recovered from the house of the appellant and the FSL opined that on the cloths of victim, human blood was found. It is also submitted that even if there are no contradictions in the statements of the witness which can effect the credibility of the evidence of the prosecution witnesses and non- examination of independent witness, cannot be a ground for rejecting the evidence of the witness as held by the Hon'ble Supreme Court in the case of Ambika Prasad and another v. State (Delhi Administration) ( (2000) 2 SCC 646). It is also submitted that looking to the allegation of relation between the victim and the appellant Smt. Sumitra, it was difficult for the prosecution to produce more witnesses who may have been present on the scene of occurrence who might not have cooperated the prosecution because of the character of the appellant herself as well as of the victim. It is also submitted that non-mentioning of name of one of the accused in the FIR cannot have any adverse effect on the prosecution case if all D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 20 witnesses have supported the prosecution case. It is also submitted that even if there are some lapses on the part of the investigating agency, but if circumstantial evidence are reliable and proved from the oral evidence then the accused deserves to be punished for his offence.
We considered the submissions of the learned counsel for the parties and perused the record.
So far as death of victim Satya Narayan due to injuries sustained by him, there is no much quarrel. As per the post- mortem report (Ex.P.18), the victim had following injuries:-
"(1) Abrasion linear- o.2 cm at the middle part of forehead between eye-brows.
(2) Abrasion 3 cm x 1.00 cm at the Rt. Side of frontal prominence. Tacket shaped.
(3) Abrasion 2 cm x 0.5 cm-Rt. Side of forehead 0.5 cm. Medial to I.N.O. (4) Abrasions (five) on the Rt. Side of face- 3 above the Rt. Eye-brow, one on the Rt.
Upper eye lid, one on the cheek size (i) 0.2 cm x 0.2 cm, (ii) 0.2 cm x 0.2 cm, (iii) 0.4 cm x 1.0 cm
(iv) 0.2 cm x 1.0 cm (v) 0.3 cm x 1.0 cm.
(5) Abrasion 5 cm x 1.0 cm with swelling at the middle part of nose.
(6) Abrasion 1 cm x 0.5 cm at the left side of chin.
D.B.Cr.Appeal No.402/2002
Smt. Sumitra vs. State & connected Appeal 21 (7) Abrasion 0.2 cm x 0.2 cm at Rt 3rd and 4th toe.
(8) Abrasion 0.2 cm x 0.5 cm. At left tibial tuberosity .
(9) Lacerated wound 05 cm x 0.5 cm. At the left middle finger nail avulsed (10) Superficial Abrasion 10 cm x 2.00 cm at back of upper 1/3 rd of Rt. Thigh.
(11) Mark of ligature at the left Ankle joint- 3 linear bruises 9 cm x 5 cm parallel situated at outer side of left ankle joint.
(12) Faint bruises 4-0 cm x 1.5 cm parallel below the left knee joint outer side.
(13) Three marks of depression on the Rt.
Leg just below tibial tuberosity 5 cm x 2 cm size.
(14) Mark of ligature on neck- An irregular dark coloured depression groove below the thyroid cartilage 5 cm above the membrane sterni in extended position. Ligature encircling whole neck 0.5 cm width causing construction of neck.
Subcutaneous tissues glistening which effusion of blood in surrounding subcutaneous tissues hyoid cartilage intact. Skin abraded at sides.
All above injuries from 1 to 14 are
antemortem in nature."
The cause of death, as per the opinion of the Medical Board is as under:-
"After P.M. Examination of body of Sh. Satyanarayan s/o Sh. Chothmal, the mode of death is asphexia as a result of strangulation of neck."D.B.Cr.Appeal No.402/2002
Smt. Sumitra vs. State & connected Appeal 22 The injuries were ante-mortem and were sufficient to cause death in the ordinary course. The appellant's contention is that she has been wrongly implicated in false case. In her statement under Section 313, Cr.P.C, the appellant took specific defence that at the relevant time, she was attending the meeting in the office and she produced eight documents during her statement under Section 313, Cr.P.C. She also produced witness DW-1 Ashok Kumar Sharma, who stated that the appellant was teacher in the Government Primary School. She was posted in the Government School at Basgorasiya which is 20-25 kms. away from town of Churu. To reach that place, one has to travel on foot for about 2 kms. He also produced certificate Ex.D.4 which was issued by him in his own signature and on the basis of which, in cross-examination, he admitted that from certificate it is proved that the appellant was at Churu, obviously at the relevant time. Be it as it may be, it is duty of the prosecution to prove the guilt of the accused beyond all reasonable doubt.
In this case, admittedly, there is no eye-witness who saw the commission of offence by any person of killing victim D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 23 Satya Narayan and, therefore, the prosecution is based on circumstantial evidence. PW-1 Choth Mal is father of the victim. He stated that his son had relations with the appellant since long and they were strained since 2-1/2 years. He received the telephone call of the appellant Smt.Sumitra whereby the victim was called by Smt. Sumitra to Churu at her place of residence to meet the appellant. There is no reason to disbelieve this part of the statement of PW-1 Choth Mal, the father of the victim. The victim Satya Narayan had relation with appellant and Satya Narayan was of the age of 35-36 years at the relevant time. In his statement, PW-1 Choth Mal further stated that Satya Narayan used to live with the appellant and because of that, the witness, the father of the victim was annoyed. He admitted that Satya Narayan was in jail at Bikaner and, therefore, the antecedent of Satya Narayan was also not good. Looking to the long tenure of relation of Satya Narayan with the appellant, the father of the appellant would also have knowledge of such illicit relations between the victim and appellant. In cross-examination, PW-1 Choth Mal stated that appellant's land is in front of the house D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 24 of witness PW-1 Choth Mal and is separated by only way. The appellant's husband is already dead. PW-2 Dhanne Singh who is neighbour to the house of the appellant, stated that he saw Satya Narayan in front of appellant's house. The appellant and Satya Narayan were quarreling and thereafter Satya Narayan put his motor cycle in front of the house of the appellant and went in the house of the appellant. One another person was with Satya Narayan to whom the witness PW-2 Dhanne Singh was not knowing. Looking to the relations between the appellant and Satya Narayan, coming of Satya Narayan to Sumitra's house, came in the knowledge of the neighbours including PW-2 Dhanne Singh. It is not disputed that PW-2 Dhanne Singh is neighbour of the house of the appellant. In this situation, his knowledge who is coming to the house of the appellant is natural. PW-2 Dhanne Singh stated that quarreling between Satya Narayan and the appellant was because of visit of one Vijendra Singh to the house of the appellant. It may be recapitulated here that PW-1 Choth Mal father of the victim also stated that when Satya Narayan was in jail at Bikaner, the appellant borrowed some money from D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 25 known person of Satya Narayan and that was also reason for dispute between the appellant and Satya Narayan and as per the statement of PW-2 Dhanne Singh, further reason was because of coming of Virendra Singh in between the appellant and victim Satya Narayan. PW-3 Nath Mal though was declared hostile but he is having his shop near the house of the appellant. He did not support the prosecution case as such but admitted in his examination-in-chief itself that there was rolla by the nearby residents in front of the house of the appellant. Instead of saying that he saw Satya Narayan going in the house of the appellant, PW-3 Nath Mal stated that he heard rumour that Satya Narayan is in the house of appellant. He stated that he went to Dhanne Singh and told that there is some quarrel in front of house of the appellant. Collecting of neighbours in front of house of Smt. Sumitra at the relevant time, is the statement of PW-2 Dhanne Singh, finds full support from the statement of PW-3 Nath Mal.
At this juncture, it will be relevant to mention here that in her statement under Section 313, Cr.P.C., appellant Smt. Sumitra did not deny her relation with deceased Satya D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 26 Narayan. In view of the above reasons, from the above evidence alone, it is proved that there were some relations between deceased Satya Narayan and appellant Smt.Sumitra and, therefore, there was reason for the victim to visit the house of the appellant on her call inspite of resistance by victim's father. The witness PW-2 Dhanne Singh clearly stated that he saw Satya Narayan going in the house of the appellant and as per the statements of PW-2 Dhanne Singh and PW-3 Nath Mal, the neighbours to the house of the appellant collected in front of the house of the appellant on the day of occurrence. The witness PW-2 Dhanne Singh as well as PW-1 Choth Mal clearly stated that they saw the motor cycle of Satya Narayan in front of the house of the appellant and as per the recovery memo of motor cycle (Ex.P.14), the vehicle was found lying in front of the house of the appellant. PW-8 Sohan Lal is witness to this seizure of motor cycle vide Ex.P.14. In his statement, he stated that in his presence the victim's motor cycle was recovered from in front of the house of the appellant and he signed the seizure memo Ex.P.14. However, he is real brother of deceased. But merely because D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 27 of this reason, his testimony cannot be rejected. His statement in cross-examination that he signed the recovery memo Ex.P.14 at police station, is of no significance in view of the fact that in cross-examination he again reiterated that the motor cycle was recovered from front of the house of the appellant. This fact also clearly proves that Satya Narayan came on motor cycle to the house of the appellant and went in the appellant's house on 10.11.1998. It may be true that witness PW-1 Choth Mal has stated that the police reached on the scene of occurrence in the evening of the same day when he went to the house of the appellant but that appears to be an inadvertent statement, if examined with total statement of PW-1 Choth Mal. Dhanne Singh's statement that he heard the voice of Satya Narayan coming from the house of the appellant wherein the victim was shouting that appellant Sumitra, Vandana and Sanjay are killing him, may be exaggeration, but on this ground PW-2 Dhanne Singh's statement so far as he has seen Satya Narayan in front of the house of the appellant cannot be rejected or discarded which finds support from other evidence referred above. D.B.Cr.Appeal No.402/2002
Smt. Sumitra vs. State & connected Appeal 28 It is not disputed that body of deceased Satya Narayan was found in open plot of one Shanker Lal. The site map Ex.P.3 is very relevant. In the western side of this plot, in middle there is appellant's house. Adjoining the appellant's house, towards north side, there is house of one Om Prakash and adjoining appellant's house towards the south side, there is house of Nath Mal and thereafter house of Gulam Hussain with open space. In the eastern side to the plot of Shanker Lal, there is house of one Pramod Kumar and another house of Kamal. The plot of Shanekr Lal, where the body of deceased was found, is deep plot from the side of public way. The gate of plot of Shanker Lal is towards the north. The body of the deceased was found lying near the center of house of the appellant. The wall between appellant's house and plot of Shanker Lal is said to be less than 7' only. Meaning thereby the plot of Shanker Lal is surrounding by houses of other persons and the substantial part of plot has common boundary with that of appellant. In view of the above, the circumstances fully suggest that the body must have been thrown in open plot of Shanker Lal from the house of the appellant as it could D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 29 not have been thrown near the center of the house of the appellant from the house of any of the neighbours referred above. If one wants to thrown the body of the victim in the plot of Shanker Lal from its main gate which is opening on public way then it is impossible that a body in day light or in the evening can be brought in the plot through public way. Further it would have been absolutely unnatural for any person to bring the body to such long distance within the open plot of Shanker Lal so as to throw it where it was found. Coupled with this fact, the appellant who in ordinary course, would have knowledge about the dead body of a person to whom she was knowing then she did not give any explanation when for the first time, she saw the dead body of victim. Looking to the height of the wall separating appellant's house and Shanker Lal's plot, the body could have been thrown in the plot of Shanker Lal from the house of the appellant and this factual position is noticed when the site report Ex.P.3A was prepared during investigation.
The appellant's sari and cloths were recovered in pursuance of the information given by the appellant herself D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 30 under Section 27 of the Evidence Act. In her statement, the appellant stated that the recovery was not affected from her but in view of the statement of the Investigating Officer, supported by the statement of complainant PW-1 Choth Mal, we do not find any reason to disbelieve the recovery of sari of the appellant from the house of the appellant and which was found hidden. The sari had blood stains as per the FSL report Ex.P.37. The appellant failed to explain how blood came on her sari and on the piece of cloth recovered from her house at her instance. The appellant took plea of alibi and stated that she was in the meeting, but the appellant failed to produce any evidence to prove her innocence by showing her presence elsewhere. In the facts and circumstances, when the appellant failed to prove her specific plea of her absence at the relevant time, there is every reason to believe the prosecution story.
Deceased Satya Narayan's shoes and shocks were recovered from the house of the appellant and from her house, mattresses were recovered for which seizure memos Ex.P.7 and Ex.P.8 were prepared and those articles were sent D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 31 for chemical examination to the FSL. Ex.P.7 and Ex.P.8 also contained marks of seal which were put on the packets in which those articles were sent to the FSL. Over these articles also human blood was found. It is true that the witness Ramji Lal who was witness to the recovery of mattresses (Ex.P.7 and Ex.P.8) has not been produced by the prosecution in the witness-box but non-production of this witness is not material in view of the statement of PW-1 Choth Mal and the Investigating Officer and further these are the corroborative evidence and finds support from other oral evidence. If blood was not found on the wall of the house of the appellant, it cannot affect the prosecution case in any manner. There is every possibility that the victim might not have touched any part inside the wall of the appellant's house and since he was thrown from the house of the appellant then no blood could have come on the other side of the wall of the appellant's house. The possibility of minor contradictions in giving time or date by the witnesses, cannot affect the complete evidence of the witnesses if other part of the evidence is reliable and, therefore, the contention of the learned counsel for the D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 32 appellant that there is contradiction in timing on which victim's father PW-1 Choth Mal came at Churu to the house of the appellant and about the manner in which the appellant was arrested, are of not of much significance in the totality of the evidence produced by the prosecution. The contention of the learned counsel for the appellant that it is unusual that father of any person will go to the house of his son's lady with whom his son might have illicit relation, is based on assumption. In case of doubt, the father will first go to the place where he may have doubt that some untoward incident may happen. In view of the above reason, when there is direct circumstantial evidence, proving the fact of leaving of victim Satya Narayan from his village after telephone call of the appellant, his reaching to the house of the appellant, putting the motor cycle in front of the house of the appellant and thereafter entering in the house of the appellant and thereafter the neighbours collected in front of the house of the appellant and body was found in the adjoining plot of the house of the appellant which was separated by only a small wall of less than 7' where the body of victim could not have D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 33 reached without it's being thrown from the house of the appellant, coupled with the recovery of the blood stained mattresses, blood stained sari of the appellant and other articles, the prosecution fully established all circumstances leading to the conclusion that the appellant murdered the victim Satya Narayan. In view of the above reason we do not find any merit in the appeal of the appellant Smt.Sumitra and the same deserves to be dismissed.
The State has preferred D.B.Criminal Appeal No.756/02 against the acquittal of three accused respondents who are Vandana and Sanjay, daughter and son of convict Smt.Sumitra and one Bhojraj, who is brother-in-law of convict Smt.Sumitra. All the three respondents faced trial for offence under Section 302/34, IPC. The evidence against these three respondents are absolutely weak which is apparent from the statement of witness PW-1 Choth Mal who had no personal knowledge of involvement of these respondents in committing the crime. However, in his report(Ex.P.1) he gave names of respondents Sanjay and Bhojraj but that was on the basis of his assumption. PW-2 Danne Singh in his statement in court, D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 34 stated that he heard voice of Satya Narayan coming from the house of the co-accused Smt.Sumitra, the mother of respondents no.1 and 2 and sister-in-law of respondent no.3 and the victim Satya Narayan was shouting that he is being killed/beaten by co-accused Smt. Sumitra,Sanjay and Vandana. That part of the statement of Dhanne Singh(PW-2) involving Vandana and Sanjay was not believed in co-accused Smt. Sumitra's appeal which is decided by this judgment itself. PW-2 Dhanne Singh stated that when he was sitting near the house of Bajrang Lal, he saw Vandna running towards his brother's PCO and thereafter he saw both Vandana and Sanjay going into their house. He stated that he heard voice of Satya Narayan and cries for safety. Respondent Sanjay was not found when the Investigating Officer entered in the house of respondents no.1 and 2 and their mother-co-accused and he was arrested after more than two months' period. Only Vandana was there who was arrested by the police along with Sumitra. This part of his statement that Vandana and Sanjay went in the house of their mother Sumitra, is not supported by any other evidence on record. Same is the position with D.B.Cr.Appeal No.402/2002 Smt. Sumitra vs. State & connected Appeal 35 respect to the presence of respondent no.3 Bhojraj, whose presence is also not proved by the evidence of the prosecution. As per the statement of PW-7 Radhey Shyam which corroborates the statement of PW-2 Dhanne Singh, dispute between the victim and Sumitra was due to one Vijendra Singh. In view of the above, in fact, there is no evidence against the respondents no.1 to 3 and, therefore, the trial court was fully justified in acquitting these accused. In view of the above we do not find any merit in the appeal preferred by the State and the same deserves to be dismissed.
In view of the above discussion, both the appeals are dismissed.
( CHAND MAL TOTLA) ,J. (PRAKASH TATIA),J. mlt