Rajasthan High Court - Jodhpur
Suresh Kumar vs State on 27 August, 2019
Bench: Sandeep Mehta, Abhay Chaturvedi
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 269/2014
Suresh Kumar S/o Khetaji, Age 45 years, By caste Rawal
Brahman, R/o Janapura, Tehsil Pindwara, District Sirohi.
(Lodged at Central Jail Jodhpur)
----Appellant
Versus
State of Rajasthan
----Respondent
For Appellant(s) : Mr. Nishant Bora
For Respondent(s) : Mr. Anil Joshi, Public Prosecutor
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE ABHAY CHATURVEDI Order 27/08/2019 (PER HON'BLE CHATURVEDI,J.)
1. The instant criminal appeal under Section 374(2) Cr.P.C. has been preferred by the accused-appellant Suresh Kumar being aggrieved by the judgment dated 13.03.2014 passed by the learned Additional Sessions Judge, Abu Road, District Sirohi in Sessions Case No. 33/2011 (State of Rajasthan vs. Suresh Kumar) whereby the accused-appellant has been convicted and sentenced as under:
Offences for Sentence awarded which convicted Section 302 IPC Imprisonment for life and a fine of Rs.6,000/-
and in default of Payment of fine to further undergo six month's imprisonment.
Section 4/25 Rigorous Imprisonment of One year and Rs.
Arms Act 1,000/- fine and in default of Payment of fine further undergo one month's rigorous imprisonment. (Downloaded on 03/09/2019 at 08:26:39 PM) (2 of 12) [CRLA-269/2014]
2. The brief facts relevant and essential for disposal of the appeal are noted hereinbelow. On 12.08.2011, PW-25 Bharat Kumar submitted a written report (Ex.P/41) to SHO Police Station Pindwara who was at the place of incident at Village Janapur. The same was forwarded to the Police Station Pindwara through Shri Bhagat Singh, where the FIR No.230/11 was registered for the offence under Section 302 IPC. In this written report, allegations were set out that Smt. Vidhya, the sister of the informant Shri Bharat Kumar Rawat (PW-25), was married to the accused- appellant and on the day of occurrence i.e. on 12.08.2011 at about 8-8:15 am, he came to know that the accused-appellant was beating his sister Vidhya. Thereupon, he along with Goverdhan (PW-6) rushed to the house of the accused-appellant. They saw that the accused-appellant's hands and legs were covered in blood and he ran away on a motorcycle. They tried to stop him but could not succeed. Thereafter, when they entered the house, Vidhya was lying dead in the bathroom in a pool of blood. Thereafter, they informed the police and their relatives. The elder sister of Vidhya and Kishore Kumar (PW-7) reached there. Deceased Vidhya was having cut wounds on different parts of her body, to be specific, below her neck, both the hands and on the back. These injuries inflicted to Vidhya led to her death.
3. After registration of the FIR, PW-27 Shri Devaram, SHO Police Station Pindwara proceeded to investigate the case.
4. During investigation, the following documents were prepared by PW-27 Shri Devaram, the investigating officer:
(i) Inquest Memo - Ex.P/1 dt.12.08.11
(ii) Site Plan - Ex.P/2 dt.12.08.11
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(iii) Fard Surat Hal Lash Mrataka- Ex.P/3 dt.12.08.11
(iv) Seizure Memo of Blood
from Bathroom and tiles - Ex.P/4 dt.12.08.11
(v) Seizure Memo of Knife - Ex.P/5 dt.12.08.11
(vi) Seizure Memo of Cloth
of the deceased Smt. Vidhya- Ex.P/6 dt.12.08.11
(vii) Memo of Photographs,
Fingerprints taken at the
house of the accused - Ex.P/7 dt.12.08.11
(viii) Seizure Memo of Blood
from the place of
incident of the house - Ex.P/8 dt.12.08.11
(ix) Seizure Memo of
weapon of offence A Knife - Ex.P/9 dt.12.08.11
(x) Fard Supurdgi Lash
of deceased Smt. Vidhya - Ex.P/10 dt.12.08.11
Photographs of the place of the occurrence of incident and of the deceased (Ex.P/12 to Ex.P/29) were taken by Shri Mukesh Kumar (PW-18).
5. The post mortem examination of deceased Vidhya was conducted by Dr. Ashok Kumar, Medical Officer, CHC Pindwara (PW-5), who issued the post mortem report Ex.P/10 wherein, as many as 18 internal wounds were noticed by the doctor and the cause of death of the deceased Vidhya was opined to be the injuries to the vital organs of the body i.e. left lung and Trachea and Hemorrhagic shock. The accused-appellant was arrested vide Arrest Memo Ex.P/15. The blood stained shirt of the accused- appellant was seized vide seizure memo Ex.P/16. The statements of the witnesses were recorded by the investigating officer under (Downloaded on 03/09/2019 at 08:26:39 PM) (4 of 12) [CRLA-269/2014] Section 161 Cr.P.C. Thereafter, a charge-sheet was filed against the accused-appellant before the Magistrate concerned for the offences under Section 302 IPC and 4/25 Arms Act. The offence under Section 302 IPC being exclusively triable by the Court of Sessions, the case was committed and transferred to the Court of learned Additional Sessions Judge as above and trial was commenced.
6. The trial Court framed charges against the accused-appellant for the offences under Sections 302 IPC and 4/25 Arms Act, who pleaded not guilty and claimed trial. The prosecution examined as many as 29 witnesses and exhibited 58 documents in support of its case. Upon being questioned under Section 313 of CrPC and when confronted with the prosecution allegations, the accused- appellant denied the same and claimed to have been falsely implicated in this case.
7. In defence, no witness was examined on behalf of the accused-appellant but two documents were exhibited.
8. After hearing the arguments advanced by the learned Public Prosecutor and the Defence Counsel, the learned trial Court proceeded to convict and sentence the appellant as mentioned above.
9. Learned counsel for the appellant, while challenging the impugned judgment passed by the trial Court submitted that the trial Court has not considered the material facts and without any legal evidence has held the accused-appellant guilty for the alleged offences. He has further urged that there is no eye witness of the incident and the case is solely based upon circumstantial evidence which is not sufficient so as to link the accused with the crime. In the present case, the chain of circumstance is not (Downloaded on 03/09/2019 at 08:26:39 PM) (5 of 12) [CRLA-269/2014] complete against the accused-appellant and hence, he deserves to be acquitted. It was further submitted that PW-25 Bharat Kumar who lodged the FIR (Ex.P/41), admitted in his statement before the trial Court that he did not witness the accused-appellant running away from the place of occurrence. Thus, the allegation set out in the FIR that he had seen the accused-appellant running from the scene is not reliable. PW-6 Goverdhan Kumar also stated that he did not see the accused-appellant running from the house and on the contrary, he categorically stated that when he reached at the place of occurrence, the accused-appellant was not present at the spot. It was also submitted that weapon used in the commission of offence was not recovered from the accused- appellant and was recovered lying at the place of occurrence. So on the basis of recovery of knife, the accused cannot be connected with the offence.
10. Learned counsel further submitted that no evidence whatsoever was presented before the trial Court to establish that the accused-appellant was present at home when the offence was committed and so he cannot be connected with the murder of his wife Smt. Vidhya. He further submitted that the evidence produced by the prosecution regarding previous conduct of the accused-appellant can not be made basis to connect the accused- appellant with the alleged offence. He, thus, implored the court to accept the appeal, set aside the impugned judgment and acquit the accused-appellant of the charges.
11. On the other hand, learned Public Prosecutor supported the impugned judgment and refuted the submissions made by the learned counsel for the appellant. He stated that the judgment of the trial Court is in consonance with the evidence produced by the (Downloaded on 03/09/2019 at 08:26:39 PM) (6 of 12) [CRLA-269/2014] prosecution. It was further submitted that there is ample evidence placed on record regarding the manner in which the accused- appellant used to ill treat his wife deceased Smt. Vidhya. The deceased Smt. Vidhya had apprehension in her mind that the accused appellant would kill her, therefore, she submitted a written report (Ex.P/43) to the SHO, Police Station Pindwara, who, after due inquiry, initiated proceedings under Section 107-116 Cr.P.C. against the accused-appellant. It was further submitted that the accused-appellant absconded for a long time. Hence, from the previous and subsequent conduct of the accused-appellant, the inference of guilt of the accused-appellant may be drawn. He, thus, implored the Court to dismiss the appeal and affirm the impugned judgment.
12. We have given our thoughtful consideration to the submissions advanced at bar, have carefully perused the impugned judgment and have re-appreciated the evidence available on record threadbare.
13. From a perusal of the evidence adduced by the prosecution, it transpires that the deceased Smt. Vidhya was married to the accused appellant Suresh about 20 years before the incident and four children were born out of wedlock. The prosecution has put forth the case that the accused-appellant often used to beat and ill treat the deceased Smt. Vidhya. On 12.08.2011, in the morning, deceased Smt. Vidhya was given knife blows by the accused- appellant, which resulted in her death.
14. PW-2 Shankarlal, PW-6 Goverdhan, PW-7 Kishore Kumar and PW-25 Bharat Kumar have stated that when they reached the place of incident, the deceased Smt. Vidhya was lying in her bathroom having injuries on different parts of her body. (Downloaded on 03/09/2019 at 08:26:39 PM)
(7 of 12) [CRLA-269/2014] 15. PW-5 Dr. Ashok Kumar, who conducted post mortem
examination of the deceased Smt. Vidhya, stated in his testimony before the Court that he found as many as 18 incised wounds on different parts of the body and it was opined by him that the cause of death of the deceased was injuries to vital organs, i.e. left lung and Trachea and Hemorrhagic shock. He proved the post mortem report (Ex.P/10). Thus, from his statement, the homicidal death of the deceased Smt. Vidhya in her matrimonial home is proved.
16. In order to prove the previous conduct of the appellant, the prosecution has produced the oral as well as the documentary evidences.
17. PW-25 Bharat Kumar has stated on oath as under:
^^lqjs"k vDlj fo~|k ds lkFk ekjihV djrk FkkA bl ckjs esa iwoZ esa fo~|k us ,l-Mh-,e-lkgc]fi.MokM+k ds ;gk¡ ij fjiksVZ nh FkhA^^
18. PW-6 Goverdhanlal has stated on oath as under:
^^lqjs"k viuh iRuh fo~|k dks dkQh le; ls ekjihV dj jgk FkkA lqjs"k dks ifjokj okyksa ,oa xk¡o okyksa us dkQh le>k;k Fkk ijUrq og ugha lq/kjkA lqjs"k ds fo:) mldh iRuh fo~|k us eqdnek Hkh ntZ djok;k FkkA^^
19. PW-7 Kishore Kumar has stated on oath as under:
^^lqjs"k esjh cgu fo~|k dks ?kj ls ckgj ugha tkus nsrk FkkA tsy esa j[krs gS oSlk j[krk FkkA gekjs ?kj ij Hkh vkus ugha nsrk FkkA mlds lkFk esa ekjihV djrk FkkA gesa lxs HkkbZ;ksa dks Hkh mlds ?kj fo~|k ls feyus ugha nsrk FkkA fo~|k ,d efgus gekjs ?kj ij jgh Fkh rks mldk ifr lqjs"k gekjs ?kj ij vkdj Hkh "kjkc ihdj mlds lkFk ekjihV djrk Fkk vkSj ?kj dk lkeku ckgj Qsad nsrk Fkk vkSj gekjs ?kj ds lHkh yksxksa ds vykok (Downloaded on 03/09/2019 at 08:26:39 PM) (8 of 12) [CRLA-269/2014] xyh eksgYys ds yksx Hkh ns[krs FksA fo~|k us lqjs"k ds fo:) Fkkus esa Hkh ekjihV djus ckcr~ fjiksVZ nh FkhA^^
20. PW-10 Lata, sister of the deceased Smt. Vidhya has stated on oath as under:
^^fo~|k dh "kknh vkt ls 20o'kZ iwoZ gqbZ Fkh tks lqjs"k ds lkFk gqbZ FkhA esjk o esjh cfgu fo|k dh "kknh ,d gh ifjokj esa gqbZ FkhA eSa o esjh cfgu fo|k tukiqj esa vyx&vyx vius&vius ifjokjksa ds lkFk jgrh FkhA fo|k ds rhu yM+ds o ,d yM+dh gSA esjh cfgu fo|k ds lkFk lqjs"k ekjihV djrk Fkk] ftlls esjs HkkbZ fd"kksj fo|k dks ihgj ysdj x;sA fQj lqjs"k ogk¡ vk;k o dgus yxk fd fo|k dks lgh rjhds ls j[kw¡xk o bls esjs lkFk Hkstks] esjs 4&4 cPps gS o og fo|k dks ysdj vk x;kA fo|k dgrh jgrh Fkh fd ,d fnu lqjs"k esjs dks ekj nsxkA lqjs"k us fo|k dks ,d fnu Nqjk ?kksaidj ekj fn;kA lqjs"k fo|k dks ekjdj Hkkx x;kA fo|k dh ekSr ls ,d fnu igys "kke esa esjk cPpk fo|k ds ?kj x;k gqvk Fkk] ftls ysus eSa ogk¡ xbZ FkhA fo|k ckgj diM+s lq[kk jgh Fkh rks mlus eq>s dgk fd mldk ifr ¼lqjs"k½ vanj gS] fo|k dg jgh Fkh fd oks dlkbZ fo|k dks ekj nsxkA fo|k dgrh Fkh fd lqjs"k mls ekj nsxkA fo|k dh cPph ihuy Hkh dgrh Fkh fd mldk firk lqjs"k mldh ek¡ fo|k dks ekj nsxkA^^
21. PW-26 Mohanlal has stated on oath as under:
^^fnuk¡d 09-4-2011 dks eSa iqfyl Fkkuk fi.MokM+k esa gSM dkfu- ds in ij dk;Zjr FkkA ml fnu Fkkuk gktk ij tfj;s VsyhQksu Jh [ksrkjke jkoy fuoklh tukiqj dh VsyhQksfud bZryk ij eSa e; tkCrk ds Fkkus jokuk gksdj tukiqj Hkjr dqekj jkoy ds ?kj ij igq¡pkA tgk¡ ij [ksrkjke jkoy] mldk csVs lqjs"k dh ifRu fo|k mifLFkr feysA lqjs"k dqekj dh ifRu fo|k us mlds ifr lqjs"k dqekj fo:) vk;s fnu >xM+k djus ,oa ekjihV djus ,oa tku ls ekjus dh /kedh dh fjiksVZ nh FkhA ftl ij tk¡p "kq: dhA tk¡p ds nkSjku ifjoknh;k fo|k ,oa [ksrkjke ds c;ku fy;sA c;ku ysdj x"r djrk gqvk Fkkuk igq¡pk rFkk 107@116 lhvkjihlh dk bLrxklk (Downloaded on 03/09/2019 at 08:26:39 PM) (9 of 12) [CRLA-269/2014] eqfrZc dj xSj lk;y lqjs"k dqekj ds ,l-,p-vks- dks is"k fd;kA ftuds }kjk rglhynkj fi.MokM+k ds ;gk¡ ij bLrxklk izLrqr fd;k x;kA^^ Rojnamcha Entry (Ex.P/47), written report submitted by the deceased Smt. Vidhya (Ex.P/43) and the statements of Khetaram (Ex.P/44), deceased Smt. Vidhya (Ex.P/45) and the complaint (Ex.P/46) were exhibited and proved by PW-26 Mohanlal.
22. On analysis of the aforesaid oral and documentary evidences produced by the prosecution, it is apparent that the accused- appellant used to treat the deceased Smt. Vidhya badly and often beat her. The conduct of the accused-appellant led the apprehension in the mind of the deceased Smt. Vidhya that she might be killed at the hands of the accused-appellant, therefore, she submitted a written report (Ex.P/43) to the SHO, Police Station Pindwara, in which she specifically alleged that her husband, the appellant herein, used to beat her brutally. PW-26 Mohanlal, on inquiry, found that there was a danger to the life of deceased at the home of the accused-appellant, therefore, he submitted complaint (Ex.P/46) against the accused to the Executive Magistrate and Tehsildar, Pindwara on 13.04.2011, for initiation of proceedings under Section 107-116 Cr.P.C., which was just four months prior to the date of incident. It is also reveled that on 13.03.2011 too, the deceased submitted a similar report to the SHO, Police Station Pindwara. Even a day before the incident, the deceased had an apprehension of death at the hands of the accused-appellant, as conveyed by her to her sister PW-10 Lata.
23. Admittedly, the accused-appellant and the deceased used to live together at the house mentioned in the site plan (Ex.P/2) and (Downloaded on 03/09/2019 at 08:26:39 PM) (10 of 12) [CRLA-269/2014] the deceased Smt. Vidhya was found dead having as many as 18 injuries by a sharp edged weapon. It was within the special knowledge of the accused-appellant as to what happened in the house which led the death of the deceased Smt. Vidhya. Therefore, it was the duty of the accused-appellant to explain these circumstances during trial. The accused-appellant in his statement under Section 313 Cr.P.C. did not offer any explanation to the same and merely stated that he had been falsely implicated in this case. During the course of arguments, learned counsel for the appellant submitted that he was not at home when the incident occurred, but the same fact was not stated by the accused-appellant at the time of recording his statement under Section 313 Cr.P.C. If, the accused was, in fact, not at home at the time of the incident and was at some other place, it was his duty to have led evidence to prove his defence by way of plea of alibi, but no such evidence has been produced by accused-appellant. Therefore, there is nothing on record which can be treated to be a logical / acceptable explanation of the accused-appellant. Thus, the net result is that the accused-appellant failed to explain the circumstances in which, his wife died in the matrimonial home and therefore, the presumption of guilt of accused-appellant under Section 106 of the Evidence Act has to be raised in this case and adverse inference deserves to be drawn against him.
24. Hon'ble the Apex Court in the case of State of Rajasthan Vs. Thakur Singh reported in 2014(12) SCC 211 has observed in para 22 and 23 as under :
"22. The law, therefore, is quite well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain (Downloaded on 03/09/2019 at 08:26:39 PM) (11 of 12) [CRLA-269/2014] facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts.
23. Applying this principle to the facts of the case, since Dhapu Kunwar died an unnatural death in the room occupied by her and Thakur Singh, the cause of the unnatural death was known to Thakur Singh. There is no evidence that anybody else had entered their room or could have entered their room. Thakur Singh did not set up any case that he was not in their room or not in the vicinity of their room while the incident occurred nor did he set up any case that some other person entered the room and caused the unnatural death of his wife. The facts relevant to the cause of Dhapu Kunwar's death being known only to Thakur Singh, yet he chose not to disclose them or to explain them. The principle laid down in Section 106 of the Evidence Act is clearly applicable to the facts of the case and there is, therefore, a very strong presumption that Dhapu Kunwar was murdered by Thakur Singh."
25. The law laid down by the Apex Court in the Thakur Singh's case is fully applicable in the facts and circumstances of this case.
26. There is one more important aspects of the matter that while the occurrence took place on 12.08.2011, the accused-appellant came to be arrested as late as on 07.09.2011 vide Arrest Memo (Ex.P/15). This willful absence of the accused-appellant from the house for a long time, specially when his wife was killed brutally in his own house, is a fact which is totally incongruous with his innocence. During trial, he failed to offer any explanation as to why he remained shun during this period. Hence, aforestated conduct of the accused-appellant subsequent to the incident is an important circumstance connecting him with the offences. (Downloaded on 03/09/2019 at 08:26:39 PM)
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27. In view of the previous and subsequent conduct of the accused-appellant coupled with his non explanation of the circumstances in which deceased Smt. Vidhya died in his own house give rise to the presumption that it is the accused- appellant, who committed the murder of his wife Smt. Vidhya.
28. We are fully convinced that the prosecution has proved its case against the accused-appellant beyond all manner of doubt.
29. As an upshot of the above discussion, we find no reason whatsoever to interfere with the findings of the trial Court while convicting the accused - appellant for the offences under Sections 302 IPC and 4/25 the Arms Act vide impugned judgment dated 13.03.2014. The appeal is having no force. Consequently, the same is dismissed. The impugned judgment dated 13.03.2014 passed by the learned Additional Sessions Judge, Abu Road, District Sirohi in Sessions Case No. 33/11 is affirmed.
30. The record of the trial court be sent back forthwith.
(ABHAY CHATURVEDI),J (SANDEEP MEHTA),J
7-Arvind/-
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