Rajasthan High Court - Jodhpur
Bheru Lal vs State on 29 October, 2021
Bench: Sandeep Mehta, Rameshwar Vyas
(1 of 14) [CRLA-240/2015]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 240/2015
Bheru Lal s/o Mohan Lal Suwalaka aged 40 years r/o Udliyas,
Police Station. Kotadi, District Bhilwara.
(Presently lodged in Central Jail Ajmer)
----Appellant
Versus
State of Rajasthan
----Respondent
Connected With
D.B. Criminal Appeal No. 95/2015
Smt.Kamla @ Laxmi w/o Jeet Mal Kharl aged 35 years r/o
Udliyas, P.S. Kotdai, Distt- Bhilwara
(Presently lodged in Central Jail Ajmer)
----Appellant
Versus
State of Rajasthan
----Respondent
For Appellant(s) : Mr. R.K Charan in D.B. Criminal
Appeal No. 240/2015
Mr. Zafar Khan in D.B. Criminal
Appeal No. 95/2015
For Respondent(s) : Mr. Anil Joshi, Public Prosecutor
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE RAMESHWAR VYAS Judgment Judgment Reserved on : 15/09/2021 Judgment Pronounced on : 29/10/2021 Per Hon'ble Mr. Rameshwar Vyas, J.
Both the aforesaid appeals stand decided by this common judgment as they arise out of common judgment & order of conviction.
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(2 of 14) [CRLA-240/2015] The appellants Bherulal & Smt. Kamla have preferred separate appeals under Section 374(2) of Cr.P.C against the judgment & order dated 24.01.2015 passed by Additional Sessions Judge, Shahpura, District Bhilwara in Sessions Case No. 17/2011 (Bherulal & Anr. Vs State of Rajasthan), whereby, the accused- appellant were convicted & sentenced as under:-
Offence Sentences Fine Fine Default
sentences
U/s 302IPC Life Rs.2000/- 03 months RI
Imprisonment
U/s 365IPC 07 years RI Rs.1000/- 01 months RI
U/s 201 IPC 03 Years RI Rs. 500 15 Days RI
Brief facts of the case are that on 26.09.2011, a dead body of unknown lady aged about 35-40 years was found lying under the National Highway bridge near Shani temple; injuries were found on her neck. This fact came in the knowledge of Sarpanch of village Narela viz Durga Singh, who reported the matter to SHO, Police Station Chanderiya, District Chittorgarh by a written report (Ex-P/1) upon which an FIR no. 315/11 (Ex-P/41) under Sections 302 & 201 IPC was registered against unknown persons. The dead body was secured in the presence of witnesses vide memo Exhibit P-2 and was sent for postmortem. A site plan was prepared vide Exhibit P-3. All SHO's of the State were informed; the clothes found on the dead body were seized vide Exhibit P-47; DNA samples were collected from the dead body; photographs of the dead body were also snapped; viscera of the dead body was sent to FSL for examination. Dead body could not be identified. (Downloaded on 29/10/2021 at 09:27:26 PM)
(3 of 14) [CRLA-240/2015] On 18.10.2011 PW-1 Kailash son of deceased Prem Devi lodged a written report vide Exhibit P-2 to the Deputy Superintendent of Police, Shahpura, wherein inter-alia it was alleged that on 25.09.2011 i.e on Sunday, his mother Prem Devi with his younger brother Kisan, aged about 2 years, went to village Chalniya for "darshan" at Bherunath temple; they did not return in the evening; in spite of intensive search, they could not be found. On the previous day, Kamlesh went to village Chalniya with his maternal uncle Shyamlal, where they came to know that Bherulal, Kamla and some other persons had taken his mother forcefully from village Chalniya in a Pickup vehicle. In this regard, a written report Exhibit P-2 was submitted to the Deputy Superintendent of Police, who sent the report to SHO, Kotdi. The case was assigned to SHO, Shahpura who deputed Head Constable Ramlal to make inquiry. The Head Constable recorded the statements of complainant Kailash, Shyamlal, Jetu and Bherulal and found that the mother of Kailash and his brother Kisan, aged about 2 years, were taken away by Bherulal, husband of Prem Devi and father of Kailash and Kishan from village Chalaniya, Bherunath. Prem Devi could not be traced by the Head Constable. Inquiry Report was submitted to the SHO on 05.11.2011. After three days i.e. on 08.11.2011, an FIR No. 204/2011 under Section 365 IPC was registered on the basis of above report and the case was handed over to Fatehlal (Sub Inspector) for further investigation. During investigation, site plan of village Chalania, Bherunath was prepared on 09.11.2011; the child of Kishan was recovered from the possession of accused Bherulal vide Exhibit P- 4 on 10.11.2011 and his custody was handed over to Kailash (Downloaded on 29/10/2021 at 09:27:26 PM) (4 of 14) [CRLA-240/2015] (complainant). Bherulal was arrested on the same day and on the basis of the information given by him under Section 27 of the Indian Evidence Act, the site plans of place of occurrence and the place where dead body was thrown away, were prepared; documents of FIR No. 315/2011 of PS, Shahpura were collected; Kailash and Shyamlal identified that dead lady visible in photographs was of Prem Devi. Co-accused Kamla Devi was arrested on 13.11.2011 vide Exhibit P-15. Statements of witnesses under Section 161 Cr.P.C were recorded; the record of Toll Plaza, from where pickup vehicle passed, was received; pickup vehicle and its documents were seized from the possession of Bherulal vide Exhibits P-14 and 16; information regarding mobile phone of deceased given by Bherulal was recorded on 14.11.2011 vide Exhibit P-28 and the same was recovered on 15.11.2011 on his information.
After investigation, charge-sheet was filed against Bherulal and Kamla under Sections 302, 365 and 201 read with Section 34 of Indian Penal Code. As the offence under Section 302 IPC was exclusively triable by court of Sessions, the case was committed to the court of the Additional Sessions Judge, Shahpura, District Bhilwara for trial where charges were framed against the accused- appellants herein who pleaded not guilty and claimed trial.
Prosecution produced total 30 witnesses in its support and exhibited total 55 documents. Accused Bherulal when examined under Section 313 Cr.P.C, denied the prosecution evidence and averred that vehicle RJ06-GA-0883 belonged to him which was seized by police from his house. He did not know how Prem Devi (Downloaded on 29/10/2021 at 09:27:26 PM) (5 of 14) [CRLA-240/2015] died. No witness was produced on behalf of accused in their defence.
During arguments Shri Charan, learned counsel for the appellant Bherulal has contended that false recoveries were shown from the possession of the appellant. As per prosecution story, deceased was said to have been taken by appellant on 25.09.2011 forcefully but no one stated this fact before the police till 18.10.2011. On this fact, learned trial court has relied upon the statement of Jetu, whose statement was recorded by the police after considerable delay i.e. on 09.11.2011. Statement of another witness Pooran (PW-25) was also belatedly recorded on 16.11.2011. Witness Kailash (PW-1) did not support the prosecution story, as he was declared hostile by prosecution. In absence of completion of chain of circumstances, Bherulal could not have been convicted for the charge of murder of his wife. Learned counsel, therefore, prayed for the acquittal of the accused-appellant.
Shri Zafar Khan, learned counsel for the appellant Kamla has contended that Kamla has been convicted without any evidence; there is no iota of evidence against her.
On the contrary, learned Public Prosecutor has contended that there is ample evidence on record to connect Bherulal with the offence. Bherulal had illicit relations with co-accused Kamla; in order to remove obstacles in their relations, Prem Devi and her son Kishan were taken away by Bherulal and Kamla in a vehicle and then Bherulal strangulated Prem Devi to death and threw away the dead body below the National Highway Bridge, beside (Downloaded on 29/10/2021 at 09:27:26 PM) (6 of 14) [CRLA-240/2015] the Shani Temple. The Child was found in the possession of appellant Bherulal who did not offer any explanation for not taking any action despite his wife having gone for so many days; he neither reported the matter to anybody nor answered satisfactorily to Kailash and Shyamlal. Mobile of the deceased was recovered from the possession of appellant. Learned Public Prosecutor further submitted that Kamla was also involved in this whole episode, learned trial court has rightly convicted them for the offences under Sections 302, 365 & 201 IPC.
Having considered the arguments advanced by learned counsel for the parties and after going through the evidence available on record, it reveals that deceased Prem Devi wife of appellant Bherulal used to visit Chalniya Bherunath on every Sunday. One fine day on 25.09.2011, she went to temple with her two years old son Kisan. She did not come back; she was searched here and there but no clue was found. On the next day i.e. 26.09.2011, a dead body was recovered below the National Highway, near Shani Temple in the jurisdiction of PS Chanderiya, District Chittorgarh. After necessary inquiry, the dead body was cremated without identification; afterwards, it was found that the dead body so cremated belonged to the mother of Kailash and sister of Shyamlal, who identified it on the basis of photographs and clothes. Jetu (PW-5) & Pooran (PW-25) have been produced to corroborate the fact that it was Bherulal who took away deceased with him and after that, no one had seen her alive.
Kailash PW-1 has been declared hostile by prosecution. However, he stated in his examination-in-chief that Prem Devi was (Downloaded on 29/10/2021 at 09:27:26 PM) (7 of 14) [CRLA-240/2015] his mother, they were two brothers. His younger brother was aged about 2 years; his mother Prema Devi used to visit Chalniya, Bherunath on every Saturday and returned back on Sunday or Monday; his father was Driver by profession who had his own Pickup vehicle. He and his maternal uncle Shyamlal went to search for his mother who could not be found anywhere. He did not know as to whether his mother was killed by Kamla and Bherulal.
Shyamlal (PW-2) stated that he received a telephonic call from Kailash that his mother went to Bherunath and did not return back. They started looking out for the lady and went to village Chalniya, Bherunath; where one lady named Jetu told them that Bherulal and Kamla had taken away Prem Devi in a pickup vehicle. He further stated that there was dispute between Bherulal and his sister Prem Devi on account of Kamla. Previously, Kamla resided with Bherulal, afterwards, she started living at Lavada. He also stated that his sister used to visit village Chalniya, Bherunath. As per his version, he reported the matter to the Deputy Superintendent of Police and he also looked for Bherulal; he talked to Bherulal on telephone but Bherulal abused him. In the cross examination, this witness stated that Jetu was not previously known to him. They went to Chalniya after 20-25 days of Prem Devi having gone missing. His sister used to go to village Chalniya, Bherunath on every Saturday and Sunday for last 8 years. Child Kisan was handed over to them. Prem Devi was abducted on Sunday in the "Aasoj" (Hindu month); he denied the suspicion that the relations between Bherulal and Prem Devi were (Downloaded on 29/10/2021 at 09:27:26 PM) (8 of 14) [CRLA-240/2015] cordial; as per his version Prem Devi told him about the affairs of Bherulal with another woman.
In our considered opinion depositions of the above witnesses fully prove the fact that Prem Devi used to visit village Chalniya, Bherunath on every Saturday and Sunday. One fine day, she went with her minor son Kisan, aged about 2 years and did not return back. Bherulal was told of the fact that his wife had gone missing but he did not divulge this fact to anyone. On the other hand, Kailash and Shyamlal went to search for Prem Devi. During the course of search, they also tried to contact Bherulal, who did not respond properly to their queries. During search, they came to know from Jetu that Prem Devi was taken away by Bherulal.
We have perused the deposition of Jetu PW-5, resident of Chalaniya, Bherunath carefully. As per her statement, Prem Devi used to come to village Chalniya, Bherunath on every Saturday and Sunday for the last 6-7 years and would stay in "Sarai" Incident took place one or two days before starting of Navratra. Prem Devi was taking meal, when her husband Bherulal came there and took her with him. At that time her 2 years old child was also with her. She was taken in a Pickup vehicle at about 02:00 PM. After the incident, son of Prem i.e. Kailash, aged about 14 years, came to inquire about his mother. She told him that his mother had been taken away by his father; Kailash was accompanied by Shyamlal brother of the deceased. She had not seen Prem alive again after that. In cross examination, she stated that the incident took place on Sunday; she did not remember the exact date. On that day a Fair had been organized in the village (Downloaded on 29/10/2021 at 09:27:26 PM) (9 of 14) [CRLA-240/2015] Chalniya, Bherunath. She reiterated that Prem Devi used to come Bherunath on every Sunday. After 5-10 days of the incident, police came there, by that time, she was not aware as to what had happened to Prem Devi. In her cross examination, she also stated that whoever asked her about Prem Devi, she replied that Bherulal took her with him. In response to a pertinent suggestion by the defence the witness replied that she did not know that Bherulal had taken his wife to his mother's house. It is also important to mention that as per this witness, Prem Devi was weeping at the time when her husband took her with him. The statement of Jetu finds support from the statement of Puran (PW25). According to him also, Bherulal took away Prem Devi with him along with her minor son.
After perusing the statement of Jetu, we are convinced that Jetu's version is absolutely truthful and reliable. Though, she is not relative of deceased yet on account of frequent visits of deceased Prem Devi to village Chalniya, Bherunath, she was acquainted with Prem Devi. Bherulal and Shyamlal were also previously known to her. In cross examination, the fact of Bherulal taking away Prem Devi from Chalniya, Bherunath was not disputed, rather it was tried to be justified by suggesting her that Bherulal took Prem Devi to his house for meeting his mother. There is no evidence on record to suggest that after taking Prem Devi was taken away by Bherulal on the day of incident i.e. Sunday in the Hindi month of Aasoj, which is commensurate with the month of September, Prem Devi was seen alive by anybody. On the next day, the dead body was found lying below the (Downloaded on 29/10/2021 at 09:27:26 PM) (10 of 14) [CRLA-240/2015] National Highway Bridge and was recovered by the officer of Police Station, Chanderiya. Gopal Ramchandrani PW-29- SHO, P.S. Chanderiya proved the fact of recovery of the dead body. As per his statement, on receiving the information from Durga Singh, Sarpanch, Narela on 26.09.2011 to the effect that an unidentified female dead body was lying below National Highway near Shani Temple, he went to the spot. Durga Singh filed the report (Exhibit P-40), upon which FIR No. 315/2011 under Sections 302 & 201 IPC was registered. He prepared the site plan, got photographs taken and sent the dead body for postmortem; seized some articles, took samples etc. This witness further stated that during investigation, he came to know that one case had already been registered at the Police Station, Shahpura regarding abduction of the deceased Prem Devi. After taking necessary orders from Superintendent of Police, Chittorgarh, he handed over the seized articles to Superintendent of Police, Bhilwara.
Shyamlal (PW-2) stated that they went to Chanderiya Police Station and identified the pohotographs of his sister. Thus, there is overwhelming evidence of the fact that the dead body recovered by the Police officers at Chanderiya in FIR No.315/11 was of Prem Devi, who is the mother of Kailash and sister of Shyamlal. Upon information from Police Station, Chanderiya had been received, the fact of the homicidal death of Prem Devi was established. Thereafter the accused Bherulal was arrested and the child Kisan was recovered from his possession. In this regard, Fatehlal (PW-
26) stated that the child Kisan was recovered from the accused and his custody was given to his elder brother Kailash and (Downloaded on 29/10/2021 at 09:27:26 PM) (11 of 14) [CRLA-240/2015] maternal uncle Shyamlal vide Exhibit P-4. Witness of recovery memo Subhash (PW-7) also supported the prosecution story. On the suggestion of the defence, he admitted that the child was produced by Bherulal at the Police Station. Appellant Bherulal did not explain the circumstances under which the child Kisan came to be in his possession even though he and his wife Prem Devi's relations were strained and both were not living together. He also failed to explain one important incriminating circumstance proved against him that how Kisan and his mother were separated from each other, whereas he had taken his wife along with Kisan. The circumstance that he neither reported the fact of long absence of his wife to any body nor did he reply properly to the query of Shyamlal during search process, also goes against the appellant Bherulal. The above mentioned facts and circumstances clearly prove the guilt of the appellant Bherulal. He offered no explanation regarding the facts which were specially in his knowledge. The evidence reveals that he had relations with Kamla Devi which was also the cause of dispute between the deceased and the appellant.
As per postmortem, report the cause of death was due to Asphyxia. Injuries were found near neck region of the deceased which were antemortem. Nature of the injury also corroborates the fact that she was strangulated to death. FSL report is negative regarding any poisonous substance.
After perusing the evidence on record, it also reveals that deceased had no enmity with anyone; there was no reason to doubt that anybody else had caused the death of the deceased. (Downloaded on 29/10/2021 at 09:27:26 PM)
(12 of 14) [CRLA-240/2015] As per postmortem report, no internal or external injuries were found on genital organs so as to suggest motive of sexual gratification to kill her except one as proved by the prosecution.
It is also relevant to mention that appellant is driver by profession, he owns and drives a pickup which was precisely the vehicle used in this incident & was recovered from the possession of the appellant during investigation.
The fact that appellant induced his wife to go with him and then she was taken away along with her minor son in pickup vehicle, on the second day her dead body was found lying below the National Highway near Shani temple; marks of injuries were found on her neck, death due to strangulation; the fact that child was found in the possession of the appellant (Bherulal); the fact that the deceased Prem Devi was not seen alive after her departure from village Chalaniya, Bherunath with the appellant Bherulal clearly establish his guilt. There is no explanation on the part of the appellant regarding the injuries, caused to Smt. Prem leading to her death and circumstances under which he got the custody of child of 2 years. Thus, appellant has been rightly convicted by the learned trial court for offences under Sections 302, 365 & 201 IPC. There is no reason to interfere the judgment of the trial court to the extent it relates to the appellant Bherulal.
Regarding conviction of the appellant Kamla, there is no evidence on record to connect her with the offences. It seems that she has been convicted on the sole ground that she was involved in an affair with the appellant- Bherulal.
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(13 of 14) [CRLA-240/2015] We fully agree with the contention of the learned counsel for the appellant that Kamla Devi was not seen with the appellant by anybody at village Chalaniya, Bherunath. During investigation, police reached at village chalaniya Bherunath and prepared site plan Exhibit-3 in which the place from where deceased was taken away by Bherulal has been indicated, the name of Bherulal has been mentioned in the said Memo whereas it is not mentioned that Kamla Devi was also with him at that time.
Jetu (PW-5) in her examination-in-chief stated that she heard at a later point of time that the lady sitting in the vehicle was Kamla Devi. In cross examination she also stated that she saw pickup from the distance of 25-50 pawandas. On the basis of above statement, Kamla could not be held guilty. Learned trial court has grossly erred in convicting Kamla without any evidence, hence, she is entitled to be acquitted.
On the basis of above discussions, the criminal appeal of appellant Bherulal fails and is dismissed as such. The judgment dated 24.01.2015 passed by the Additional Sessions Judge, Shahpura, District Bhilwara is affirmed and upheld to the extent of appellant Bherulal.
So far as the appellant Kamla is concerned, the appeal is allowed to her extent. She is acquitted from the offences punishable under Sections 302,365 and 201 IPC. She is on bail. She need not surrender and her bail bonds are discharged.
Keeping in view, however, the provisions of Section 437-A CrPC, the accused-appellant Smt.Kamla @ Laxmi w/o Jeet Mal Kharl is directed to forthwith furnish a personal bond in the sum of (Downloaded on 29/10/2021 at 09:27:26 PM) (14 of 14) [CRLA-240/2015] Rs. 30,000/- and a surety bond in the like amount, each, before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellant, Kamla on receipt of notice thereof, shall appear before Hon'ble Supreme Court.
After necessary compliance, record of the trial court be returned forthwith.
(RAMESHWAR VYAS),J (SANDEEP MEHTA),J
1 & 2 Rahul Arya/-
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