Rajasthan High Court - Jodhpur
Pola Ram vs State on 1 July, 2021
Bench: Sandeep Mehta, Devendra Kachhawaha
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 982/2012
Pola Ram S/o Shri Kurda Ram, by caste Kumhar, aged 32 years,
R/o Lalgarh Jattan, P.S. Lalgarh Jattan, District Sriganganagar
(At present lodged in Central Jail, Sriganganagar)
----Appellant
Versus
State of Rajasthan
----Respondent
For Appellant(s) : Mr. Rajesh Choudhary, Amicus Curiae
(Pro-bono)
For Respondent(s) : Mr. Anil Joshi, PP
Mr. Jagdish Bishnoi for complainant
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA Judgment Date of Pronouncement :- 01/07/2021 Judgment Reserved on :- 15/03/2021 (Per Hon'ble Mehta,J.)
1. The appellant herein has been convicted and sentenced as below vide judgment dated 19.10.2012 passed by learned Special Additional District & Sessions Judge (Women Atrocities & Dowry Cases) Sriganganagar in Sessions Case No.42/2011:
Offences Sentences Fine Fine Default sentences Sec. 302 IPC Life Imprisonment Rs.2,000/- 6 Months' Additional Simple Imprisonment Sec. 201 IPC Seven Years' SI Rs.1,000/- 3 Months' Additional Simple Imprisonment (Both the sentences were ordered to run concurrently) (Downloaded on 02/07/2021 at 08:26:16 PM) (2 of 26) [CRLA-982/2012]
2. Being aggrieved of his conviction and sentences, the appellant has approached this Court by way of this appeal under Section 374(2) Cr.P.C.
3. Facts relevant and essential for disposal of the appeal are noted hereinbelow:-
The appellant herein was married to Kalawati, D/o Brijlal Kumhar R/o Mahifwali in the year 2000. Two sons were born from their wedlock. Smt. Kalawati was working as an A.N.M. and was posted at the Primary Health Centre, 10 K.D., Village Rawla and was residing there in the Government accommodation with her husband and sons. On 22.10.2011, Kalawati's brother-in-law (Jeth) Liluram (PW-4) called her brother Shri Indraj (PW-1) and informed him that Kalawati had been abducted. On hearing this, Shri Indraj (PW.1) alongwith his younger brother Daleep Kumar (PW-6) and cousin Mahaveer (PW-8) started from their village Mahifwali and reached 10 K.D. Village Rawla. They made an enquiry from Pola Ram who replied that in the previous night between 11.30 and 11.45, a quarrel had taken place between him (Pola Ram) and Kalawati and thus, he had strangled her to death and threw the dead body into the D.O.L. canal for destroying evidence. Enquiry was also made from the Sarpanch of the Village 10 K.D., Rawla who also confirmed the fact that Pola Ram wanted Kalawati to leave the job of A.N.M., but she was not agreeing to it and being angered by her resistance, Pola Ram had beaten up Smt. Kalawati a few times previously. Pola Ram had been counselled by the family members, but did not mend his ways and (Downloaded on 02/07/2021 at 08:26:16 PM) (3 of 26) [CRLA-982/2012] eventually, Smt. Kalawati was killed and her dead body was thrown into the canal. Shri Indraj (PW-1) lodged a written report (Ex.P/1) with the above allegations to the SHO Police Station Rawla on 22.10.2011 at about 01.15 pm, on the basis whereof, an FIR No.232/2011 (Ex.P/24), came to be registered at the Police Station, Rawla for the offences punishable under Sections 302 and 201 IPC and investigation was commenced. It may be mentioned here that well before the registration of the FIR (Ex.P/24), on 22.10.2011, in the morning at about 6 O' clock, Shri Hansraj Godara (PW.10), husband of the village Sarpanch, had given an information to Shri Chandra Prakash, SI (PW.14) that Smt. Kalawati was missing since previous night and that something untoward might have happened to her at the hands of her husband. This information was noted down in Roznamcha Entry No.887 (Ex.P/51A). Sub-Inspector Shri Chandra Prakash, along with the police constables proceeded to the village 10 K.D. Rawla where, the written report (Ex.P/1) came to be submitted before him by Shri Indraj (PW-1). During the course of investigation, a photographer was summoned and the place of incident was got extensively photographed. Site Inspection Plan (Ex.P/2) and description of the site (Ex.P/2A) were prepared. Following incriminating articles were seized from the place of the incident i.e., Government Quarter, Primary Health Centre, where Smt. Kalawati was residing with her husband and two children:-
(1) a khes (bed cover), a Gudad (a kind of cotton mattress), two pillow covers, a pouch of tobacco, scissors and a blood stained water tumbler (Lota), vide seizure memo Ex.P/3, (Downloaded on 02/07/2021 at 08:26:16 PM) (4 of 26) [CRLA-982/2012] (2) broken pieces of bangles and a nose-pin, vide seizure memo Ex.P/4, (3) a clump of black coloured hair of a female, vide seizure memo Ex.P/5.
The Investigating Officer then proceeded to the D.O.A. canal and prepared a site inspection plan (Ex.P/6) and description memo (Ex.P/6A). Soil was collected from the place of incident. Statements of concerned witnesses were recorded under Section 161 CrPC. Search was made in the canal and on 24.10.2011, the dead body of Smt. Kalawati was found floating near the Towers Nos.36 and 37 of the K.Y.D. canal. The first informant Indraj (PW.1) identified the dead body to be of his sister Smt. Kalawati. The description memo of the dead body (Fard Surat-haal Lash) (Ex.P/8) and Panchnama Lash (Ex.P/9) were prepared. Site Inspection Memo of the place of recovery of the dead body (Ex.P/10) was also prepared. The dead body was sent to the Government Hospital, Rawla where autopsy was undertaken upon it by a Medical Board and the postmortem report (Ex.P/37) was issued. While conducting postmortem, the doctors noticed fracture of the cricoid cartilage with hematoma formation and compression of posterior larynx apparatus. The cause of death as opined by the medical board in the postmortem report, was asphyxia brought about as a result of multiple ante-mortem bodily injuries. The appellant was arrested on 31.10.2011 at about 4:30 pm vide arrest memo Ex.P/39 and certain recoveries were effected at his instance. After concluding investigation, a charge-sheet came to be submitted against the accused appellant in the court of Judicial (Downloaded on 02/07/2021 at 08:26:16 PM) (5 of 26) [CRLA-982/2012] Magistrate (First Class), Ghadsana for the offences under Sections 302 and 201 IPC. The incriminating materials recovered by the Investigating Officer SI Chandraprakash (PW.14) had been forwarded to the Forensic Science Laboratory from where, FSL report (Ex.P/44) was received. As the offence under Section 302 IPC was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions Judge, Sriganganagar from where, it was transferred to the Court of Special Judge (Women Atrocities and Dowry Cases), Sriganganagar where charges were framed against the accused-appellant in the above terms. He pleaded not guilty and claimed trial. The prosecution examined as many as 16 witnesses and exhibited 58 documents to prove its case. Upon being questioned under Section 313 Cr.P.C. and when confronted with the circumstances appearing in the prosecution evidence, the accused denied the same, but he did not choose to lead any evidence in defence. After hearing the arguments advanced by the prosecution and the defence counsel, and appreciating the evidence available on record, the learned trial court proceeded to convict and sentence the appellant in above terms. Hence, this appeal.
4. Initially, the appeal was filed as represented appeal, but as no one appeared to argue the matter on behalf of the appellant, he was summoned from prison through a production warrant. He was produced in the Court on 04.02.2020 and with his consent, learned counsel Shri Rajesh Choudhary was appointed to act and represent the appellant as an amicus curiae (pro-bono) in this appeal.
(Downloaded on 02/07/2021 at 08:26:16 PM)
(6 of 26) [CRLA-982/2012]
5. Shri Rajesh Choudhary, learned amicus representing the appellant vehemently and fervently urged that there is no evidence worth the name on record of the case so as to connect the appellant with the crime. The appellant had no motive whatsoever for murdering his wife. The theory put forth by the prosecution that the appellant was opposed to his wife working as an A.N.M., is totally fictitious and conjectural. In this regard, Shri Choudhary drew the Court's attention to the statement of the first informant Indraj (PW-1) and more particularly, the cross- examination undertaken from him wherein, the witness admitted that his sister (the deceased) was 12th standard qualified when she was married. The accused-appellant supported her in procuring the A.N.M. degree. During this period, she used to live at Abohar and would occasionally visit her matrimonial home. She got the job of A.N.M. in the year 2010. At that time, she and her husband used to reside at Ridmalsar. After being assigned posting in Rawla, she and her husband started living together there. He thus urges that ex-facie, as the appellant was instrumental in Smt. Kalawati acquiring the degree of A.N.M. and also made many sacrifices during this period, he could not carry any grudge against his wife persuing the job of A.N.M. which was actually coveted by the family. He urged that the theory of motive attributed by the prosecution to the appellant for the murder of his wife is thus negated on the face of the record and as the appellant had no motive to kill his wife, manifestly, the charge of murder foisted upon him has to fail. He further submitted that the prosecution theory that the appellant made an extra-judicial confession before (Downloaded on 02/07/2021 at 08:26:16 PM) (7 of 26) [CRLA-982/2012] the first informant is totally unsubstantiated and inadmissible for more than one reasons; firstly, because the story itself is prima facie unbelievable, and secondly, the police had already been informed about Smt. Kalawati having gone missing from her house by Shri Hansraj Godara (PW-10), and the police officers had reached the spot before lodging of the FIR and the said extra- judicial confession if at all, would have been made in presence of the police officers and thus, the same would be hit by Section 25 of the Indian Evidence Act. To support the contention that the extra-judicial confession was actually extracted in presence of the police officers, Shri Choudhary drew the Court's attention to the admission made by the Investigating Officer (PW.14) in his evidence that he reached the place of incident 20 minutes after making the Roznamcha Entry (Ex.P/51A) which was recorded at 6.00 am whereas, the first informant Indraj (PW.1) in whose presence the extra-judicial confession was allegedly made, reached the place of occurrence much later. He thus urged that the learned trial court was totally unjustified in relying upon the so-called extra-judicial confession allegedly made by the appellant to the first informant because apart from the entire theory being false, the extra-judicial confession, if any, was extracted in presence of the police officers and hence, the same is inadmissible. Shri Choudhary further submitted that the learned trial court was unjustified in placing reliance on the evidence of the child witness namely Aman (PW.13) because manfiestly, he had been thoroughly tutored by his maternal uncle and grandfather to give evidence against the appellant. In this regard, Shri Choudhary drew the Court's attention to the following (Downloaded on 02/07/2021 at 08:26:16 PM) (8 of 26) [CRLA-982/2012] admissions as appearing in the evidence of the child witness Aman which are reproduced for the sake of ready reference:-
"izfrijh{k.k }kjk vf/koDrk vfHk;qDr Jh vkse jkoy %& esjs ikl iqfyl dHkh ugha vkbZA eq>s irk ugha fd esjs ikik dks iqfyl dc idM+dj ys xbZA iqfyl esjs ?kj dc vkbZ eq>s irk ughaA esjh eEeh dc ejh mldk eq>s irk gSA esjh eEeh ds ejus dk eq>s vki irk gS eq>s fdlh us ugha crk;kA vkt eSa esjs ekek ds lkFk vk;k gwaA vHkh eSa vius ikik ds ikl jg jgk gwaA eq>s ekek ds ikl jgrs ,d lky gks x;k gSA eSa ekek dk dguk ekurk gwa eSa ukuk dk dguk ekurk gwa tSlk ;s dgrs gS oSlk djrk gwaA eq>s xokgh nsus ds fy, ukuk us dgk FkkA tSlk ukuk us dgk oSls gh xokgh ns jgk gwaA essjs dks esjs eEeh ls ejus ls igys iqfyl ds ikl ugha ys x, eEeh ds ejus ds ckn Hkh iqfyl ds ikl ugha ys x,A eq>s o esjs HkkbZ dks o ukuk ge iqfyl ds ikl c;ku nsus ds fy, x, FksA tc Fkkuk esa eq>s ys x, rc esjs firk Hkh Fkkus esa ekStwn FksA esjs firk ls Fkkus esa ckr ugha gqbZ FkhA ukuk us esjs firk ls feyus ugha fn;kA eSaus iqfyl dks ;g ugha dgk fd esjs ikik dks D;ksa idM+k gSA esjh eEeh dh e`R;q ds nwljs fnu eq>s Fkkus ys x, FksA fQj nksckjk Fkkus ugha ys x;sA tks ,d ckj Fkkus tkus ds ckn vkt rd nksckjk Fkkus ugha x;kA esjs lkeus iqfyl us esjs ukuk o ekek ls iwNrkN dh FkhA iqfyl okyksa us esjs ls dqN ugha iwNk FkkA eq>s fgUnh i<uh vkrh gSA eq>s Fkkuk esa dqN i<k;k ugha FkkA fdlh us dqN crk;k Hkh ughaA eq>s Fkkus esa pk; ugha fiykbZA eSa Fkkus esa ikuh ihdj okfil vk x;k FkkA iqfyl us eq>s dgk fd vkidks xokg cuk;sxsa o dksVZ HkstsaxsA iqfyl us crk;k fd dSlh xokgh nsuh gSA"
As per Shri Choudhary, the admissions as appearing in the evidence of child's evidence discredit his evidentiary worth. He further urged that the links in the chain of circumstanial evidence (Downloaded on 02/07/2021 at 08:26:16 PM) (9 of 26) [CRLA-982/2012] consisting of recovery of the motorcycle (Ex.P/14) and the blood stains allegedly collected from the silencer thereof (Ex.P/15) and the recovery of the blood stained shirt (Kamiz) (Ex.P/16), made at the instance of the appellant are also fabricated because the accused-appellant was shown arrested after nearly eight days of the incident and it is impossible to believe that he would preserve the incriminating blood stained articles for so many days despite having the opportunity to dispose of the same. He urged that so far as the blood stains noticed on the Khes and the pillow covers seized from the house where the accused and the deceased were residing are concerned, they are explainable because the deceased was a young lady and the possibility of the blood stains having occurred during her menstrual cycle cannot be ruled out. He thus submitted that the conviction of the appellant is unsustainable as the appreciation of the evidence undertaken by the trial court below is totally laconic & conjectural and that the findings recorded in the impugned judgment do not stand to scrutiny. On these submissions, he sought acceptance of the appeal craving acquittal for the appellant.
6. Per contra, learned Public Prosecutor and the learned counsel representing the complainant vehemently and fervently opposed the submissions advanced by the learned counsel representing the appellant. They submitted that the appellant and the deceased being spouses were living together in the same government accomodation. The deceased went missing in the night intervening 21st and 22nd October, 2011. The information regarding the lady (Downloaded on 02/07/2021 at 08:26:16 PM) (10 of 26) [CRLA-982/2012] having gone missing was given to the Police Station by Shri Hansraj Godara (PW-10) at 6 O' clock in the morning. Hansraj clearly stated in his evidence that Pola Ram was habituated to quarelling with his wife and also used to cast aspersions on her, whereas the character of deceased Kalawati was absolutely aboveboard. They further submitted that blood stained articles, viz. the pillow covers and the scissors used to kill the deceased were recovered from the spot (Ex.P/3). The Salwar collected from her dead body was seized. The blood stained silencer of the motorcycle and the shirt worn by the accused at the time of the incident were recovered at his instance. All these articles were analyzed at the Forensic Science Laboratory and they tested positive for AB group blood. The accused was under an obligation to furnish an explanation as to how all these articles including the bedding etc. got stained with the same blood group as that of the deceased Smt. Kalawati. However, he failed to offer any explanation whatsoever in this regard. They further urged that the occular testimony of the child witness Aman (PW.13) is totally convincing. The child had no reason to give evidence against his own father. On these contentions, learned counsel for the complainant and learned Public Prosecutor prayed for affirmation of the guilt of the accused, as recorded by the trial court vide the impugned judgment.
7. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the material available on record.
(Downloaded on 02/07/2021 at 08:26:16 PM)
(11 of 26) [CRLA-982/2012]
8. The deceased Kalawati and the appellant were married in the year 2000. Smt. Kalawat was selected on the post of A.N.M. and was living in the government accomdoation at the Primary Health Centre, Rawla with the appellant and her children. Smt. Kalawati went missing from home in the night intervening 21 st and 22nd October, 2011, whereupon the police was informed. On 24.10.20211, the dead body of Smt. Kalawati was found floating near the Towers Nos.36 & 37 of the K.Y.D. canal. The case of the prosecution is based on circumstantial as well as direct evidence.
9. Firstly, we proceed to examine the evidence of child witness Aman (PW-13) who was portrayed to be an eyewitness of the incident and rightly so because, admittedly, the child was present with his parents in the house at Rawla on the fateful night. The witness was aged less than five years at the time of the incident and thus, manifestly, he was a child of very tender age. Upon being examined on oath, the child stated that he along with his parents and his brother Himanshu (PW-7) used to stay in the village Rawla. His mother used to work. On the day of incident, Himanshu had gone to his paternal aunt's house. He and his mother were present in the house. They took food and went to sleep. He heard his mother's screams on which, he woke up and saw his father trying to strangulate her. He punched his father so as to save his mother. His father brought scissors and gave blows thereof on the neck of his mother due to which, she started bleeding. He too raised screams. No one came to save her. His father told him that he would be taking his mother to the hospital for getting her treated. His mother was boarded on a motorcycle (Downloaded on 02/07/2021 at 08:26:16 PM) (12 of 26) [CRLA-982/2012] by his father and was thrown into the canal. He was also accompanying his father at that time. His mother was tied to the back of motorcycle with a chunni and he was made to sit on the fuel tank of the motorcycle. After throwing his mother into the canal, his father dropped him back at the Dhani. In cross- examination, the witness stated that he was never approached by the police. Nobody had told him as to how and when his mother died because he himself knew about the incident. He came to the Court with his maternal uncle (Mama) with whom he had been living for the past one year. He accepted whatever his maternal grandfather (Nana) and his maternal uncle (Mama) told him and would talk on the terms as told by them. He was inspired by his maternal grandfather (Nana) to give evidence and was speaking as per his instructions. He was not taken to the police after the death of his mother. His maternal grandfather (Nana) took him and his brother to the police for giving statement. On that day, his father was also present in the Police Station but he was not allowed to talk to him. The police asked his Mama and Nana about the incident, but he was not asked anything. The police told him that he would be made a witness to give evidence in the Court. The police told him as to how he was to give evidence. After the death of his mother, he was living at his maternal grandfather's house. Though the witness was not confronted with his previous statement, but for verifying the facts, we examined the charge- sheet and the unexhibited documents and find that statement of the child under Section 161 CrPC was indeed recorded on 25.10.2011. The statement of the child witness was strongly criticized by Shri Choudhary with reference to the above referred (Downloaded on 02/07/2021 at 08:26:16 PM) (13 of 26) [CRLA-982/2012] portions of his cross-examination. As per Shri Choudhary, since the child admitted that he had been guided to give the statement by the police and his Mama and Nana, it has to be concluded that the child had been tutored to give such statement. However, the fact remains that the suggestions of tutoring which were given to the child witness were very vague and shrouded. In the very second and third lines of cross-examination, the child categorically affirmed that he knew the sequence of events regarding his mother's death on his own and nobody had told him about the same. The witness was given suggestions that he accepted whatever his Mama and Nana told him. He behaved as per their guidance. However, these admissions in isolation would not even remotely indicate that the child had been tutored by his Nana or Mama to give a statement incriminating the appellant for the assault made on Smt. Kalawati. Not even a vague suggestion was given to the child during cross-examination that the eyewitness account of the incident which he had narrated in his examination-in-chief was based on suggestions or guidance of his Mama or his Nana or the police. The general acceptance made by the witness that he accepted whatever his Nana and Mama suggested or that he behaved as per their guidance were absolutely natural because these are general behavioural tracts which a child generally follows in the Indian rural family-social system. Therefore, we have no reason to hold that the child witness Aman (PW.13)had been tutored by either his Nana, or Mama or the police officials to give evidence against the appellant or that his evidence can be doubted for this reason.The child was just five years old when the incident took place. He was happily (Downloaded on 02/07/2021 at 08:26:16 PM) (14 of 26) [CRLA-982/2012] living with his parents i.e, the appellant herein and the deceased Smt. Kalawati at the government accomodation, Primary Health Centre, Rawla. The incident appears to have been precipitated by a quarrel between the spouses, wherein the appellant suddenly got agitated and gave blows by scissors to the deceased on her neck resulting into her death. Thereafter, the appellant picked up the dead body and threw it into the canal for destroying the evidence.
10. The most important witness of the prosecution for imputing motive to the appellant for murdering his wife is of Hansraj (PW-10), husband of the Sarpanch of the village 10 K.D., Village Rawla. In his evidence, he has stated that he knew Smt. Kalawati as a nurse working at the Primary Health Centre, Rawla for about last one and a half years. She was living in the Government accomodation of the Primary Health Centre with her husband and her children. He knew the accused Pola Ram, who used to quarrel with his wife regularly by casting aspersions on her character. He had counselled Pola Ram a couple of times. Kalawati and Pola Ram lived separately for about one and a half months and then, they resolved their differences and started living together. On 22 nd October, 2011, at about 5-6 am, the villagers told him that sounds of quarrel were heard emanating from the house of Pola Ram in the previous night. He informed the police about the same in the morning at about 6 O' clock. The police arrived there. He was also called at the spot. Pola Ram was in the police vehicle so was his son. On enquiring from Pola Ram about the incident, he confessed that in the previous night, a quarrel took place between him and (Downloaded on 02/07/2021 at 08:26:16 PM) (15 of 26) [CRLA-982/2012] his wife Kalawati and that he had killed her and later threw her dead body into the canal. In cross-examination, the witness admitted that he had no particular reason to be in touch with Kalawati. He knew her only because of the Gram Panchayat work. If there is any quarrel in the village, information would be received by the Panchayat. The accused gave information regarding his wife having gone missing in the night. When the police came to the village, the accused was with them. The police took Pola Ram with them while leaving. The witness was confronted with his previous police statement (Ex.D/1) and more particularly with reference to the omissions and improvements viz-a-viz his sworn testimony, but he could not reconcile with the same. Nonetheless, the fact remains that even in his previous statement, the witness clearly alleged that Pola Ram used to cast aspersions on the character of his wife and was pressurizing her to leave the job of A.N.M. and on this count, he used to quarrel with Kalawati and would also beat her up. Hansraj is an independent witness and had no reason to give false evidence against the appellant. However, the theory of motive will have to be evaluated after analysing the evidence of the other material prosecution witnesses.
11. The first informant Shri Indraj (PW.1) alleged in the FIR (Ex.P/24) that Pola Ram wanted that Kalawati should resign from the job of A.N.M. but she was not agreeing to any such suggestion and thus, the spouses frequently quarreled with each other on this count. However, when deposing on oath, Indraj (PW.1) admitted that the accused-appellant was instrumental in his sister acquiring (Downloaded on 02/07/2021 at 08:26:16 PM) (16 of 26) [CRLA-982/2012] the job of A.N.M. He made a sacrifice by living separately so that Smt. Kalawati could acquire the degree. The witness alleged that the husband (accused-appellant) and wife used to quarrel with each other because the appellant was not happy with the job of Smt. Kalawati. However, he admitted that no panchayati etc. was ever held to resolve the issue nor did the lady ever make any complain to anyone that she was being maltreated by her husband because of her job. She was doing job of A.N.M. since the year 2010. As is evident, the appellant was instrumental in ensuring that his wife got the degree of A.N.M., he had to live separately for this purpose. The lady got the job just in the year 2010 and the incident took place in the year 2011. In this background, there had to exist some serious differences between the spouses which could have spurred the appellant so as to force her to leave the job or go to the extreme extent of murdering her. At this stage, we would like to note that Himanshu, ten years old son of the appellant and the deceased Smt. Kalawati was examined on oath as PW-7. The child was sensible enough to give evidence. He was studying in the fifth standard when the incident took place. If at all, any untoward incident had ever happened between the appellant and his wife or if they had ever quarreled with each other on account of the job status of the lady, then, the child would definitely have noticed the strained relations. Neither Himanshu nor the child witness Aman alleged in their evidence that they ever saw their parents quarreling with each other for this reason. Brij Lal, father of the deceased was examined as PW-
5. He would be one of the best persons to give evidence of motive against the appellant. In his evidence, Brij Lal stated that his (Downloaded on 02/07/2021 at 08:26:16 PM) (17 of 26) [CRLA-982/2012] daughter Kalawati was married to the appellant in the year 2000. He gave substantial goods in the marriage. Two children were born from the wedlock of Kalawati with the appellant. The accused used to beat Kalawati. Pola Ram used to tell Kalawati that she should leave the job and then they would go home. Pola Ram was a drunkard and was addicted to poppy-straw and did not do any work. The accused was counselled a number of times, but he did not relent from maltreating his wife Kalawati. The witness stated that on the day before the incident, Kalawati called him and asked him to talk to her mother (wife of the witness). He gave the phone to his wife and Kalawati talked to her. Thus, a faint indication of differences between the spouses is emanating from the evidence of Brij Lal (PW.5).
12. Daleep Kumar (PW-6), being another brother of the deceased Kalawati, gave similar evidence like Indraj. However, after appreciating all the evidence of material witnesses including the two children of the appellant and the deceased, we are of the firm view that there is no substance in the prosecution case that the appellant was having any significant motive to murder his wife Kalawati because he was not happy with her doing the job of A.N.M. It may be stated here that as per the evidence of Shri Brij Lal, the appellant was sitting idle and was not doing anything. In this background, clearly the sole source of the family's survival was the income from Smt. Kalawati's job as A.N.M. and hence, the appellant could not be expected to be so fool hardy so as to kill the goose laying the golden eggs. However, law is well settled that evidence of motive is not a 'sine quo non' for proving the (Downloaded on 02/07/2021 at 08:26:16 PM) (18 of 26) [CRLA-982/2012] charge of murder. If proved beyond all manner of doubt, motive may lend credence to the other evidence available on record. However, absence thereof cannot be a single reason to discard the prosecution case, if it is otherwise established by cogent and clinching evidence.
13. From the evidence of Hansraj (PW-10) and Chandra Prakash, SI (PW-14), it is clear that the police arrived at the spot soon after the Roznamcha Entry (Ex.P/51A) was recorded at the Police Station as early as at 6 am on 22.10.2011 and immediately thereafter, Pola Ram was confined by the police officer. However, he was shown arrested as late as on 31.10.2011 at 4:30 pm. As the accused was actually in police confinement, any extra-judicial confession regarding the murder made by him to the witnesses Hansraj (PW.10) and Indraj (PW.1) would be hit by Section 26 of the Indian Evidence Act and hence, the same cannot be relied upon.
14. Smt. Kalawati murdered by subjecting her to violence, which fact is duly proved from the evidence of the Medical Jurist, Dr.Satish Kumar (PW-12), who was a member of the medical board which conducted postmortem on the dead body of Smt. Kalawati and issued the postmortem report (Ex.P/37). As per the postmortem report, a wound admeasuring 2 x 1/2 cm into cavity deep was noticed on the right side of the neck which disected the sternocleidomastoid muscles as well as the right jugular vein. The cricoid cartilage was fractured. The wind pipe was compressed. The cause of death was opined to be asphyxia resulted by the (Downloaded on 02/07/2021 at 08:26:16 PM) (19 of 26) [CRLA-982/2012] ante-mortem injuries found on the person of the deceased. Admittedly, the dead body of Smt. Kalawati was recovered from the canal. To this extent, the allegations set out in the FIR (Ex.P/24) that the accused-appellant told the first informant Indraj (PW.1) that he had thrown the dead body of Smt. Kalawati in the canal is relevant and admissible. From the evidence of the child witness Aman (PW.13), it is clear that he, his mother (deceased Kalawati) and his father (accused-appellant) were all present together in the house on the night of the incident. Thus, the facts and circumstances leading to the violence with Kalawati on the fateful night were in exclusive knowledge of the appellant and the boy Aman (PW.13) who has given a graphic account of the incident.
15. The Investigating Officer Chandra Prakash (PW-14), reached at the spot at around 6.30 am and the place of incident i.e, the Government Quarter where Kalawati used to live with her child and husband (the accused-appellant herein), was extensively searched/inspected. Blood stains were noticed on the bedding (pillow cover), (Khes) etc. and accordingly these articles were seized vide seizure memo Ex.P/3. Likewise, a pair of blood stained scissors was also noticed at the spot and was suspected to be the weapon of offence. It was also seized in the presence of the Panch witnesses including Hansraj (PW-10) vide Seizre Memo Ex.P/3. The Seizure Officer seized these articles. The clothes (Salwar, Jumper, Blouse and Underwear) available on the dead body of the deceased were seized vide seizure memo (Ex.P/12) and were preserved for serological analysis/comparison. (Downloaded on 02/07/2021 at 08:26:16 PM)
(20 of 26) [CRLA-982/2012]
16. It may be noted here that the claim of the Investigating Officer regarding the appellant having been arrested on 31.10.2011 vide arrest memo Ex.P/39 is totally false and cooked up because admittedly, the appellant was in clutches of the police right in the morning after the incident as stated by Hansraj (PW.10). The FIR came to be registered against the appellant on 22.10.2011 and therefore, there was no reason to show him arrested eight days later. As there are grave suspicious circumstances regarding the preparation of the arrest memo of the accused-appellant, the incriminating recoveries shown to have been affected at the instance of the accused-appellant, viz. blood stained silencer of the motorcycle (Ex.P/15) and the shirt (kamiz) worn by him at the time of the incident (Ex.P/16), would lose significance. Nonetheless, the fact remains that the pillow covers, the pair of scissors recovered from the place of incident immediately after the murder, and the Salwar removed from the dead body of Smt. Kalawati, upon being analyzed at the Forensic Science Laboratory, gave positive test for presence of 'AB' group blood as per the FSL report (Ex.P/44) Thus, it is absolutely safe to conclude that the blood of Smt. Kalawati was found on the bedding articles and the scissors recovered from the place of the incident. As the accused-appellant was the only able bodied person present in the house with his wife Smt. Kalawati, by virtue of Section 106 of the Indian Evidence Act, the onus would definitely shift onto the accused to explain the circumstances under which, his wife disappeared from the house, the blood stains were found on the bedding and the scissors and as to how (Downloaded on 02/07/2021 at 08:26:16 PM) (21 of 26) [CRLA-982/2012] her dead body with fatal injuries was found in the canal. Section 106 of the Indian Evidence Act reads as below:-
"106. Burden of proving fact especially within knowledge.-- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
The explanation, as offered by the accused-appellant in his statement under Section 313 CrPC was that he facilitated the A.N.M. training of his wife after their marriage and purchased properties in the name of his wife. He also stated that, "My wife met with an accident and passed away" and that his matrimonial relatives had falsely implicated him in this case as they were casting an evil greedy eye on his property. He himself went to the police station for giving information about the accident, but was confined by the police and his report was not registered. This theory of Kalawati's death by accident putforth by the accused is totally flimsy and farfetched and does not have any credibility whatsoever.
17. As has been noted above, the death of Smt. Kalawati was not accidental, but was homicidal in nature. A very significant injury caused by a sharp weapon was noticed on the neck of the deceased which severed the underlying muscles, the jugular vein and compressed her wind pipe leading to death. As per the FSL report (Ex.P/44), blood stains of 'AB' blood group found on the bedding (pillow cover) and the scissors recovered from the spot, matched with the blood stains found on the Salwar of the (Downloaded on 02/07/2021 at 08:26:16 PM) (22 of 26) [CRLA-982/2012] deceased recovered from her dead body and also with the silencer of the motorcycle and the shirt of the accused recovered at his instance, it can be presumed that she was murdered in the house. The information given by the accused-appellant to Hansraj (PW-
10) and Indraj (PW-1) that he had thrown the dead body of Kalawati in the canal was duly fortified because the dead body of the lady was recovered from the canal by IO on 24.10.2011 vide recovery memo Ex.P/8. The occular testimony of the child witness Aman (PW.13) is wholly corroborated by the medical evidence.
18. In this background, we are of the firm opinion that the occular testimony as deposed by the child witness Aman (PW.13) and the chain of circumstances narrated above, invariably point towards the guilt of the accused for the murder of Smt. Kalawati. A quarrel on the some issue took place between the spouses on the fateful night, during which, the appellant inflicted the fatal scissor blow on her neck which proved instantaneously fatal. Thereafter, the accused carried the dead body of Smt. Kalawati on his motorcycle and disposed it of by throwing it into the canal. The information given by the accused to Hansraj (PW-10) and Indraj (PW-1) regarding he having thrown the dead body of Kalawati into the canal, was duly fortified by the ensuing recovery. Hence, we are of the firm opinion that the accused-appellant failed to discharge the mandatory burden which was shifted onto him by virtue of Section 106 of the Indian Evidence Act, for explaining the circumstances under which his wife met with homicidal death. In addition thereto, the evidence of the child witness Aman (PW.13) is convincing and conclusively points to the complicity of the (Downloaded on 02/07/2021 at 08:26:16 PM) (23 of 26) [CRLA-982/2012] accused in the crime. The circumstances of the case at hand are almost at par with those discussed and elaborated by the Hon'ble Supreme Court of India in the case of Trimukh Maroti Kirkan vs State of Maharashtra, reported in (2006) 10 SCC 681, wherein the guilt of the accused was affirmed in almost similar circumstances by taking recourse to reverse burden of proof provided under Section 106 of the Indian Evidence Act. Relevant extracts from the above judgment are quoted below for the sake of ready reference:-
"11. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh : 2003CriLJ3892 ). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:
(b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him.(Downloaded on 02/07/2021 at 08:26:16 PM)
(24 of 26) [CRLA-982/2012] Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.
XXXX
13. The question of burden of proof where some facts are within the personal knowledge of the accused was examined in State of West Bengal v. Mir Mohammad Omar and Ors. : 2000CriLJ4047 . In this case the assailants forcibly dragged the deceased Mahesh from the house where he was taking shelter on account of the fear of the accused and took him away at about 2.30 in the night. Next day in the morning his mangled body was found lying in the hospital. The trial Court convicted the accused under Section 364 read with Section 34 IPC and sentenced them to 10 years RI. The accused preferred an appeal against their conviction before the High Court and the State also filed an appeal challenging the acquittal of the accused for murder charge. The accused had not given any explanation as to what happened to Mahesh after he was abducted by them. The learned Sessions Judge after referring to the law on circumstantial evidence had observed that there was a missing link in the chain of evidence after the deceased was last seen together with the accused persons and the discovery of the dead body in the hospital and had concluded that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt. This Court took note of the provisions of Section 106 of the Evidence Act and laid down the following principle in paras 31 to 34 of the reports:
'31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the (Downloaded on 02/07/2021 at 08:26:16 PM) (25 of 26) [CRLA-982/2012] other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.
32. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this.
33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.
34. When it is proved to the satisfaction of the court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the court to draw the presumption that the accused have murdered him.
Such inference can be disrupted if the accused would tell the court what else happened to Mahesh at least until he was in their custody.' Applying the aforesaid principle, this Court while maintaining the conviction under Section 364 read with Section 34 IPC reversed the order of acquittal under Section 302 read with Section 34 IPC and convicted the accused under the said provision and sentenced them to imprisonment for life.
XXXX
16. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes placed in the dwelling home where the husband also (Downloaded on 02/07/2021 at 08:26:16 PM) (26 of 26) [CRLA-982/2012] normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime..."
19. Hence, we are of the view that the prosecution has proved its case against the accused by leading convincing evidence. The appreciation of evidence as undertaken by the trial court in the impugned judgment dated 19.10.2012 is apropos and does not suffer from any significant infirmity warranting interference therein. As a consequence, we find no merit in this appeal which is rejected as such. Accordingly, the instant appeal filed under Section 374(2) CrPC, on behalf of the appellant is rejected.
(DEVENDRA KACHHAWAHA),J (SANDEEP MEHTA),J
Sudhir Asopa/-
(Downloaded on 02/07/2021 at 08:26:16 PM)
Powered by TCPDF (www.tcpdf.org)