Rajasthan High Court - Jaipur
Badan Nath vs State Of Rajasthan on 10 February, 1999
Equivalent citations: 1999CRILJ2268
Author: R.R. Yadav
Bench: R.R. Yadav
JUDGMENT R.R. Yadav, J.
1. The present Jail Appeal has been preferred by accused-appellant Badan Nath through Superintendent, Central Jail, Jodhpur against the judgment impugned dated 9-7-96 passed by learned Sessions Judge, Raj Samand whereby he convicted accused appellant for the offence under Section 302, IPC and sentenced him to undergo rigorous imprisonment for life and Rs. 2,000/- as fine and in default of payment of fine to further undergo one year's rigorous imprisonment.
2. The prosecution case as disclosed in Ex. 5 registered at Police Station Nathdwara District Raj Samand is that the accused himself lodged a written report Ex. P13 at Police Station Nathdwara to the effect that during the night of 29/30th May 1994, in between 11-12 O' clock his nephew Arjun Singh entered into his house by jumping his boundary wall embedded with glasses and came into his Courtyard where he was sleeping. Hearing some noise he awakened and put on the light. In the light he saw deceased Arjun Singh, in state of morbidly trembling. On questioning as to what happened with him, deceased Arjun Singh informed him that while he was entering into his house by jumping his boundary wall embedded with glasses, glasses embedded on boundary wall pierced and so the blood was oozing out from his chest. Deceased Arjun Singh thereafter made a request to accused appellant to take him to Nathdwara hospital for treatment. On his request the accused appellant tried to arrange a vehicle but he couldn't be able to arrange any vehicle. The accused appellant shouted for help and on hearing shouts, Madan Nath son of Daulatnath and Madan Nath son of Kishore Nath came at the scene of occurrence and saw deceased Arjun Singh was lying on the ground and blood was oozing out from his chest. The deceased expired at 1.00 AM on 30-4-1996. On the aforesaid written report police rushed up on the spot and found that due to enmity it was accused appellant Badan Nath who had committed murder of deceased Arjun Singh by sharp edged weapon causing stab wound in his left side of the chest. On the aforesaid basis FIR Ex. 15 was registered under Section 302, IPC and investigation commenced.
3. After conclusion of investigation, the Investigating Agency filed challan against accused appellant Badan Nath before the committal Court from where the case was committed to the Court of Sessions Judge, Raj samand. The learned Sessions Judge, Raj samand framed the charges against accused appellant.
4. The accused appellant denied the charges framed against him and claimed trial.
5. In order to substantiate the prosecution case, the Prosecution Agency examined as many as 15 witnesses and produced documentary evidence Ex. P/l to Ex. P/40.
6. After hearing the learned Public Prosecutor and the learned defence counsel on behalf of accused appellant, the learned Sessions Judge, Raj samand on the strength of evidence adduced before him by the Prosecution agency convicted and sentenced the accused appellant as stated hereinabove.
7. A close scrutiny of the judgment impugned passed by learned trial Court reveals that it consists of two kinds of findings; one finding relating to homicidal death of deceased Arjun Singh which is based on independent testimonial value of PW 10 Dr. Megh Kumar Sirohia and post mortem report dated 30-5-94 Ex. P 11 whereas another finding relates to the guilt of the accused appellant.
8. From perusal of statement of Dr. Megh Kumar Sirohia (PW 10) and from statements of PW 11 and PW 12 it is easily deducible that death of deceased Arjun Singh was homicidal due to injury No. 1 caused by accused appellant which was sufficient in the ordinary course of nature to cause death of the deceased. The ocular testimony of PW 11 and PW 12 are fully corroborated from the postmortem report Ex. P 11 and the statement of PW 10 Dr. Megh Kumar Sirohia.
9. Learned counsel for the appellant Mr. Sandeep Mehta candidly conceded before us that there is no scope to challenge the finding of homicidal death of deceased Arjun Singh recorded by the learned Sessions Judge after appreciating the statements of PW 10, PW 11 and PW 12. The statements of PW 11 and PW 12 are corroborated from postmortem report Ex. P 11. According to Mr. Mehta the homicidal death of deceased by accused appellant is also inferable from the statement of Smt. Kusum Devi. However, it is urged by Mr. Mehta that the accused appellant Sadan Nath is not liable to be punished for the offence under Section 302 in the light of mandatory provisions envisaged under Section 100, IPC.
10. In support of his aforesaid contention learned counsel for the appellant Mr. Mehta invited our attention towards statement of Smt. Kusum (DW 1) daughter of accused appellant whose presence in his house at the time of occurrence is admitted by prosecution witnesses themselves. Smt. Kusum (DW 1) in her statement on oath stated that during the night of occurrence she was sleeping on a bed made of plastic niwar on the first floor. Her younger brother, sister and father were sleeping on ground floor. It is stated that at about 9-10 PM while she was sleeping deceased Arjun Singh came there and flung open her sari and lie down upon her with intention to commit rape. Upon this act of the deceased she screamed and on hearing her screaming her father accused appellant Badan Nath rushed up from ground floor to the first floor. The accused appellant immediately removed the deceased from the body of DW 1 and both of them started to fight. It is stated by DW 1 that deceased Arjun Nath (Arjun Singh) was under influence of liquor and so was her father. In her cross-examination DW 1 categorically stated on oath that she was married 4 to 5 years back and at the time of incident she was pregnant. She stated that her father accused appellant and the deceased on the date of occurrence consumed liquor together for whole day. They had a cordial relationship. Deceased Arjun Singh used to come to her father's house but he never before the occurrence attempted to commit rape with her. It is further stated that where she was sleeping a sword was kept. It is categorically stated by DW 1 Smt. Kusum that on the date of incident when PW 11 Madan Nath and Devendra Nath came to her house, deceased Arjun Nath (Arjun Singh) was alive and he told them that accused appellant Badan Nath had deceived him. It is further stated in her cross-examination by DW 1 that it is a fact that her father accused appellant Badan Nath killed the deceased by giving him a stab wound of sword kept in the room where she was sleeping. She has categorically stated that the deceased did not receive injury with the glasses embedded on the boundary wall.
11. The learned Sessions Judge has not believed the statement of DW 1 for the reason that she is daughter of accused appellant and she was making attempt to save her father from punishment. The reasons given by learned Sessions Judge in disbelieving the statement of DW 1 Smt. Kusum are not acceptable to us for the reasons given here in below.
12. DW 1 Smt. Kusum stated herself to be 18 to 20 years of age and as such she was a grown up and married woman. In such cases it would be safe to insist on some corroboration.
13. The circumstances of the instant case do indicate that during the night of occurrence, deceased Arjun Singh's wife namely Nand Kanwar (PW 3) was not in his house. She along with her mother-in-law had gone to Kumadu Kura and returned to home on the next day after getting information from a messenger. It is noticed from the statement of DW 1 Smt. Kusum that during the night of occurrence her mother was also not present in accused appellant Badan Nath's house. Only DW 1 Smt. Kusum, accused appellant Badan Nath, her younger brother and sister were present. From the aforesaid circumstantial evidence it can be inferred that deceased, taking the opportunity of absence of her mother, after alluring accused-appellant Badan Nath to consume liquor, made an attempt to commit rape upon DW 1 Smt. Kusum who was pregnant. It is established from the statement of PW 4 Smt. Guddi that DW 1 was in advance pregnancy and she gave birth to a child after one or one month and a half following the date of occurrence. It is admitted by PW 4 Smt. Guddi that on the date of occurrence DW 1 was sleeping in the first floor of her home along with her sister who was about 9 or 10 years old. It is highly probable that as she was in advance pregnancy, she resisted the sexual intercourse with deceased and this resistance caused reasonable apprehension in the mind of accused appellant Badan Nath who reached on the spot and found deceased Arjun Nath, under the influence of liquor, was making attempt to commit rape upon his daughter and so he, in anger, stabbed to the deceased from the sword lying in the room.
14. There is yet another reason to arrive at the aforesaid conclusion. We are of the opinion that it is not necessary that every part of the evidence of the victim Smt. Kusum (DW 1) should be confirmed in the minutest details by independent evidence. Such corroboration can be sought either from direct evidence or from circumstantial evidence or from both. The circumstantial evidence on record leads towards an irresistible conclusion that blood was found on the bed where DW 1 Smt. Kusum was sleeping at the night of occurrence. The Investigating Officer has taken pieces of plastic niwar of the bed in his possession which are proved to be soaked with blood on which victim Smt. Kusum (DW 1) was sleeping at the night of occurrence. The trail of blood stains were found on the upstairs and on the wall leading to the room where Smt. Kusum (DW 1) was sleeping. However, no blood was found on the boundary wall of accused appellant embedded with glasses and in the Courtyard where the deceased is alleged to have jumped in the house of accused appellant. The aforesaid fact is fully established from the statement of PW 12 Madan Nath Son of Kishore Nath who, soon after the incident, saw the place of occurrence and found blood on the plastic niwar of bed of DW 1, he also found blood stains on the upstairs of the wall leading to the room of DW 1 where she was sleeping but found absence of blood on the wall of accused appellant embedded with glasses and in the Courtyard. The statement of PW 12 inspires our confidence and it is held that deceased Arjun Singh did go to the room of DW 1 Smt. Kusum on the first floor of house of accused appellant where she was sleeping. The existence of blood on the plastic niwar of the bed where DW 1 was sleeping and blood stains on the upstairs and on the wall leading to the room leads towards a strong inference that DW l is a truthful witness and deceased Arjun Singh did make attempt to commit rape with DW 1 against her will. In such a situation within the meaning of Section 100, IPC the right of private defence of accused appellant extends to causing death of deceased Arjun Singh.
15. Another strong reason attributable to arrive at the aforesaid conclusion is that in the Indian Society refusal to act by the Courts on the testimonial value of a victim of sexual assault in absence of any corroboration as a rule tantamounts adding insult to injury. We are of the opinion that woman in tradition-bound, impermissible Indian Society would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity has been committed by anyone. In the case on hand we are of the view that DW 1 must be deemed to be conscious of the danger being ostracized by the Society including by her husband, her own family members, relatives and neighbours. The statement of DW 1 Smt. Kusum who alleged herself to be victim of sex offence deserves to be given a great weight in the facts and circumstances of the present case as discussed here in above. To our mind the probabilities factor taken into account by the learned Sessions Judge does not render the sworn testimony of DW 1 unworthy of credence. DW 1 Smt. Kusum is put to a searching cross-examination by Public Prosecutor but nothing has been brought to our notice which may lead to discredit her sworn testimony.
16. Looking into the facts and circumstances of the present case we are of the view that the accused appellant deserves to be given benefit of right of private defence of person of his daughter Smt. Kusum (DW 1) as envisaged under Section 100, IPC wherein it is provided that the right of private defence of body extends, under the restrictions mentioned under Section 99 of the Indian Penal Code to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions enumerated there under. The case on hand squarely falls under Clause (3) of Section 100 which clearly provides that an assault with the intention of committing rape gives right of private defence which extends up to causing of death. In the present case, deceased Arjun Singh gave an assault with intention to commit rape with DW 1 Smt. Kusum who is daughter of accused appellant Badan Nath, therefore, in such a situation he is entitled to be given benefit of right of private defence of person of his daughter Smt. Kusum (DW 1) as envisaged under Clause (3) of Section 100, IPC and an argument contrary to it advanced by learned Public Prosecutor is not acceptable to us.
As a result of aforementioned discussion, the instant Jail Appeal is allowed. The judgment impugned dated 9-7-96 passed by the learned Sessions Judge, Raj Samand is hereby set aside and accused appellant Badan Nath is acquitted of the offence under Section 302, IPC and he is ordered to be released from Jail forthwith unless his detention is warranted in some other case.