Rajasthan High Court - Jodhpur
Smt Chandra @ Chandu vs State on 30 June, 2022
Bench: Sandeep Mehta, Rekha Borana
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 121/2019
Smt Chanda @ Chandu W/o Ramjan Khan, Aged About 45 Years,
By Caste Musalman, R/o Jalandhari Didaniya, Police Station
Pokaran, District Jaisalmer.
(At Present Lodged At Central Jail, Jodhpur)
----Appellant
Versus
The State of Rajasthan.
----Respondent
For Appellant(s) : Dr. Sachin Acharya, Sr. Advocate with
Mr. Rahul Rajpurohit.
For Respondent(s) : Mr. B.R. Bishnoi, PP.
Mr. D.K. Godara,
Mr. Ashok Kumar.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MS. JUSTICE REKHA BORANA
JUDGMENT
Judgment pronounced on ::: 30/06/2022
Judgment reserved on ::: 12/05/2022
BY THE COURT : (PER HON'BLE MEHTA, J.)
1. The appellant herein has been convicted and sentenced as below vide judgment dated 12.03.2019 passed by the learned Additional Sessions Judge, Pokran, District Jaisalmer in Sessions Case No.08/2017 (21/2016):
Offences Sentences Fine Fine Default
sentences
Section 302/34 Life Rs.30000/- 1 Year's
IPC Imprisonment Additional
Imprisonment.
Section 201 IPC 7 Years' R.I. Rs.15000/- 6 Months'
Additional R.I.
All the sentences were ordered to run concurrently. (Downloaded on 30/06/2022 at 08:54:58 PM)
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2. Being aggrieved of her conviction and sentences, the appellant has preferred the instant appeal under Section 374(2) Cr.P.C.
3. Brief facts relevant and essential for disposal of the appeal are noted herein below:-
The appellant was married to Shri Ramjan Khan, resident of Village Jalandhari (Didaniya), Tehsil Pokran, District Jaisalmer (the deceased). Shri Ramjan Khan went missing on which, his cousin brother Shaley Mohammed submitted a report at the Police Station Pokran on 10.09.2012 alleging that Ramjan Khan went away from his house about 10-12 days ago. The family members made a search for him but he was untraceable. Ramjan Khan was aged about 45 years having wheatish complexion and was humpbacked. A Missing Person Report No.9/2012 (Ex.P/4) came to be registered at the Police Station Pokran.
On 11.09.2012, Deen Mohammed submitted a written report/ complaint (Ex.P/17) at the Police Station Pokran, District Jaisalmer alleging inter alia that his cousin brother Ramjan Khan, his wife Smt. Chanda @ Chandu and children resided near his house in the Village Jalandhari (Didaniya). Bashir Khan son of Raimal Khan, resident of Jalandhari (Didaniya) was indulged in an illicit affair with Smt. Chanda (the appellant herein) which was seriously objected by Ramjan Khan. Earlier also, cases had been filed in relation to this illicit affair by the family members but Bashir Khan did not desist from his foul activities and would keep on visiting Ramjan's wife. On 30.08.2012, Bashir Khan sneaked into Ramjan Khan's house in the night time. This incident was (Downloaded on 30/06/2022 at 08:54:58 PM) (3 of 27) [CRLAD-121/2019] seen by the informant himself, Basheer Khan son of Ameerdeen, Rasheed son of Ameerdeen and Shakoor son of Deen Mohammed. Bashir Khan and Ramjan's wife Chanda killed Ramjan in the night and concealed the dead body. The informant and his family members kept on searching for Ramjan Khan. Abdul Rahim son of Ramjan told them that on the fateful night, Bashir Khan and his mother Chanda forcibly took his father Ramjan Khan inside a room and locked him up. Abdul Rahim ran away from the house. Chanda and Bashir Khan killed Ramjan and had hidden the dead body.
On the basis of this report, an FIR No.210/2012 (Ex.P/18) came to be registered at the Police Station Pokran for the offences punishable under Sections 302/34 and 201 of the IPC and investigation was commenced. During enquiry, made after receiving the FIR, Deen Mohammed added that Ramjan's son Abdul Rahim had seen the incident but the accused persons threatened and sent him to his maternal aunt's house at the village Samdari. The boy kept on roaming here and there and had returned on 11.09.2012 whereupon the incident came to light and the report was being filed.
4. Post registration of the FIR, investigation of the case was assigned to SHO, Police Station Pokran Shri Ramesh Kumar (PW-
13). He arrested the accused appellant vide arrest memo (Ex.P/1). She was interrogated and allegedly gave an information (Ex.P/25) under Section 27 of the Indian Evidence Act for pointing out/identifying the place where the dead body of her husband was buried after he had been murdered. A requisition letter (Ex.P/26) was sent to the SDO seeking permission to disinter the dead body (Downloaded on 30/06/2022 at 08:54:58 PM) (4 of 27) [CRLAD-121/2019] from the ground. The SDM as well as the Circle Officer were informed and both reached at the spot. The place pointed out by the accused was dug up and dead body was taken out. Memorandum (Ex.P/2) was prepared in relation to this procedure on which, the accused appellant was made to append her signature. Deen Mohammed (PW-4) identified the dead body to be of his cousin brother Ramjan Khan. As per Surathaal Lash (Ex.P/8), the body had disintegrated and the bones had been separated. No visible injury was seen on the dead body which was stark naked. The remains were placed in a plastic bag and autopsy was got conducted thereof. Thereafter, the remains were handed over to the family members for performing the last rites. The accused Bashir Khan was arrested on 12.09.2012 vide arrest memo (Ex.P/26). It is alleged that he and the accused appellant Chanda gave informations leading to discovery of facts/recoveries which are noted herein below in a tabular form for the sake of convenience:
Informations Recoveries Ex.P/25 Information regarding burial Ex.P/2 Fard Utkhanan Sthal place of dead body (Excavation Memo) of the dead body of deceased Ramjan Khan Ex.P/30 Information regarding the place in the village where Chanda and accused Bashir Khan committed the murder Ex.P/31 Information regarding the place where Chanda and accused Bashir Khan committed the murder Ex.P/32 Information regarding the Ex.P/10 Buried clothes of place where Chanda and deceased Ramjan accused Bashir Khan hid Khan (blood stains clothes (Pant and T-Shirt) of (Downloaded on 30/06/2022 at 08:54:58 PM) (5 of 27) [CRLAD-121/2019] the deceased washed off) Ex.P/33 Information regarding the place, after washing blood stained clothes of the deceased, where Chanda hid the clothes (Pant and T-
Shirt) The I.O., thereafter proceeded to file a charge-sheet against the accused appellant for the offences punishable under Sections 302/34 and 201 of the IPC and as against the co-accused Bashir Khan for the offences punishable under Sections 302/34, 201, 457 and 459 of the IPC. As the offences were Sessions triable, the case was committed and transferred to the court of the Additional Sessions Judge, Pokran for trial where charges were framed against the appellant Chanda and the co-convict Bashir Khan for the above offences. Both pleaded not guilty and claimed trial. The prosecution examined as many as 13 witnesses and exhibited 40 documents to prove its case. The accused persons, upon being questioned under Section 313 Cr.P.C. and when confronted with the prosecution allegations, denied the same and claimed that they had been falsely implicated. However, no oral evidence was led in defence. After hearing the arguments advanced by the learned Public Prosecutor and the defence counsel and appreciating the evidence available on record, the learned trial court proceeded to convict and sentence the accused by the impugned Judgment dated 12.03.2019 which is assailed in this appeal.
5. It may be stated here that the co-convict Bashir Khan had filed a separate appeal (D.B. Criminal Appeal No.133/2019. (Downloaded on 30/06/2022 at 08:54:58 PM)
(6 of 27) [CRLAD-121/2019] However, he passed away during pendency of the appeal and hence, his appeal was disposed of as having abated vide order dated 06.09.2021.
6. Dr. Sachin Acharya, learned Senior Advocate assisted by Shri Rahul Rajpurohit, Advocate representing the appellant, vehemently and fervently urged that the entire prosecution case is false and fabricated. The appellant has been falsely implicated in this case so that the complainant and other family members of Ramjan could usurp his properties. The appellant was targeted and framed for her husband's murder. Her son Abdul Rahim @ Abdul Rehman, who was a simpleton, was forced and tutored to give evidence against the appellant. Abdul Rahim is not traceable after giving evidence against the appellant at the trial and in all probability, he might even have been killed by the members of the complainant party. In this regard, the appellant has filed a Habeas Corpus Petition No.68/2019 in this Court making a pertinent assertion that her husband was having 45 Bighas of land worth rupees 75 lacs rupees and a house worth rupees 40-45 lacs and that Salman S/o Hasim Khan (uncle/ caretaker of Abdul Rahim) had taken hold of these properties after the appellant was arrested. The family members of Ramjan also seem to have eliminated the boy who is untraceable despite repeated directions for his production having been given by this Court in the Habeas Corpus Petition.
Dr. Acharya urged that the prosecution case is absolutely false and fabricated. The grossly belated FIR (Ex.P/18) came to be filed by Deen Mohammed who was examined on oath as PW-4. It was categorically mentioned in the belated FIR that the informant, (Downloaded on 30/06/2022 at 08:54:58 PM) (7 of 27) [CRLAD-121/2019] Rasheed, Basheer son of Ameerdeen and Shakoor had seen the accused Bashir Khan entering the house of Ramjan Khan on the fateful night. Dr. Acharya urged that had there been an iota of truth in this allegation, the family members would immediately have lodged an FIR against Bashir Khan and Chanda rather than waiting for 12 days in approaching the police. He submitted that it is categorically alleged in the FIR (Ex.P/18) that Bashir Khan was indulged in an illicit extramarital affair with Chanda and cases had also been filed by family members of Ramjan against Shri Bashir Khan in relation thereto. In this background and as the relatives i.e. Deen Mohammed, Basheer Khan son of Ameerdeen, Rasheed son of Ameerdeen and Shakoor son of Deen Mohammed claimed to have seen the accused Bashir Khan entering the house of Ramjan, there was no reason as to why the family members did not proceed to lodge a prompt FIR and instead opted to file the M.P.R. Dr. Acharya further submitted that the proceedings whereby the dead body of Ramjan Khan was exhumed, were undertaken without following the mandatory procedure prescribed under Section 176 Cr.P.C. The I.O. Ramesh Kumar (PW-13) claimed to have requested the SDM, Pokran to reach the village Jalandhari Didaniya as recorded in the Rojnamcha Entry (Ex.P/36) dated 11.09.2012 bearing time 04.15 PM. He urged that the I.O. also claims to have submitted a letter (Ex.P/26) dated 11.09.2012 to the SDM Pokran for remaining present in the exhumation proceedings. Though the letter bears the date 11.09.2012 but the receipt which was marked thereupon by the SDM is dated 12.09.2012. Dr. Acharya submitted that the documents which were prepared by the I.O pertaining to the exhumation of the (Downloaded on 30/06/2022 at 08:54:58 PM) (8 of 27) [CRLAD-121/2019] dead body i.e. the Fard Utkhanan Lash (Ex.P/2) and the Fard Surathaal Lash (Ex.P/8). The document (Ex.P/2) reads that the body had been disinterred from the ground at the instance of the accused Chanda in presence of the SDM Pokran. However, neither the document bears the signature of the SDM nor he was examined as a witness for the prosecution. Thus, the proceedings pertaining to the recovery of the dead body are rendered invalid and inadmissible. He urged that as a matter of fact, all recoveries which the I.O. claims to have effected at the instance of the accused including that of the dead body are fabricated. Dr. Acharya further submitted that the information (Ex.P/25) recorded by the I.O. at the instance of the accused Chanda does not bear any time. He contended that if the timeline of the events is seen, it becomes apparent that the whole process of recording the information of the accused; summoning the SDM and exhumation of the dead body could not have been executed in the time and sequence stated by the I.O. In this regard, he referred to the following documents and time-line of events:
(i) Registration of the FIR (Ex.P/18) on 11.09.2012 at 04.00 PM at the Police Station Pokran which is at a distance of about 20 Kms.
from the place of incident;
(ii) Arrest of the accused Chanda @ Chandu at 05.20 PM vide Arrest Memo (Ex.P/1) dated 11.09.2012;
(iii) Information (Ex.P/25) recorded at the instance of the accused Chanda on 11.09.2012 bearing no time; and
(iv) Recovery of dead body vide Memorandum (Ex.P/2) dated 11.09.2012 at 05.45 PM.
He urged that it is impossible to believe that within a short span of time of less than two hours after registration of the FIR, (Downloaded on 30/06/2022 at 08:54:58 PM) (9 of 27) [CRLAD-121/2019] the investigating officer would have been in a position to complete the procedure of arresting the accused; recording her information under Section 27 of the Evidence Act and proceeding to disinter the dead body after seeking permission of the SDM. He vehemently urged that the I.O.'s claim that he requested the SDM to remain present at the spot and that the officer had reached there, is falsified if the recitals made in body exhumation memorandum (Ex.P/2) are seen because in this document, there is no reference to the fact that the SDM had been requested to remain present in the procedure. Dr. Acharya thus submitted that the entire procedure whereby the I.O. claims to have recorded the information of the appellant Chanda under Section 27 of the Evidence Act and the purported discovery of the dead body in furtherance of such information, is tainted, doubtful and unreliable. Criticizing the evidence of the sole eye-witness Shri Abdul Rahim @ Abdul Rehman son of the deceased and the appellant, Dr. Acharya urged that the boy was a simpleton. The first informant Deen Mohammed (PW-4) and Shri Shaley Mohammed (PW-2), cousin brothers of the deceased, were having rapaciously eyeing on his properties. Thus, not only did they eliminate the deceased but thereafter, managed to falsely implicate the appellant herein for the murder by influencing and tutoring the son Abdul Rehman. He urged that Abdul Rehman was tutored to give evidence against the appellant, which fact is manifested from the sequence of events as narrated by the witness in his evidence. Dr. Acharya submitted that, Abdul Rehman, upon being examined as PW-12, stated that his father had been killed by his mother Chanda and Bashir Khan. He was present in the house. He heard the cries of his father and tried to (Downloaded on 30/06/2022 at 08:54:58 PM) (10 of 27) [CRLAD-121/2019] save him. The time was around 11.00 PM. His father was hit by a lathi. He tried to intervene on which the accused threatened him, gave him a sum of Rs.100/- and then he was forced to go away from the village. He ran away and stayed in a Bhandara. Then, he boarded a train and proceeded to the house of his cousin brother Sahidullah and told him that his father had been killed by his mother and Bashir Khan. Sahidullah brought him back to his village Jalandhari. There, he shared details of the incident with his relatives whereafter, the FIR (Ex.P/18) was filed. Dr. Acharya urged that the witness, upon being cross-examined, admitted that he told his uncles Deen Mohammed and Shaley Mohammed regarding the incident after coming back from village Ajeet with Sahidullah, and that he had returned to the village two days after the incident. The witness also admitted that immediately after the incident, he went to the house of Basheer and Deen Mohammed and told them that his father had been killed. He stayed in the house of Deen Mohammed during the night. Even though he disclosed that his father had been killed, Deen Mohammed did not advise that the police should be informed. The boy also admitted that after he told Deen Mohammed regarding the incident, both went to his house, stayed there for 2 hours and then returned to Deen Mohammed's house. There, his uncles Shakoor, Basheer Khan and Rasheed Khan came. Again in presence of these persons, the witness disclosed that his father had been killed. Dr. Acharya urged that these facts as stated by Abdul Rehman in his cross-examination, make it clear that the informant and his relatives were made aware of the incident by Shri Abdul Rehman on the very day but despite that, no effort whatsoever was made by these persons to report the matter to the police. Even (Downloaded on 30/06/2022 at 08:54:58 PM) (11 of 27) [CRLAD-121/2019] thereafter, a highly belated Missing Person Report (Ex.P/4) was lodged wherein, there is a categoric statement that Ramjan Khan had gone away from his house on 30.08.2012 and was missing for last 10-12 days. Concluding his arguments, Dr. Acharya reiterated that the entire prosecution case is false and fabricated. Evidence of the sole eye-witness Abdul Rehman (PW-12) is not reliable. The recovery of the dead body allegedly made at the instance of the accused Chanda is fabricated. The I.O. Ramesh Kumar (PW-13) did not ensure compliance of the mandatory procedure prescribed under Section 176 Cr.P.C. and Rule 6.30 of the Rajasthan Police Rules before exhuming the dead body of Ramjan Khan. The I.O. claims to have called the SDM to participate in the proceeding whereby the dead body was exhumed but the contemporary documents do not bear any such recital. He further urged that the entire story set out by the prosecution that the accused appellant was involved in an extramarital affair with the accused Bashir Khan is also concocted. The prosecution could not prove that death of Shri Ramjan Khan was homicidal. This story was set up by the brothers of the deceased so as to fabricate evidence against the appellant and to falsely frame her for the murder of Shri Ramjan Khan so that the properties of the deceased could be usurped. On these grounds, Dr. Acharya implored the Court to accept the appeal, set aside the impugned Judgment and acquit the appellant of the charges.
7. Per contra, learned Public Prosecutor and learned counsel representing the complainant, vehemently and fervently opposed the submissions advanced by the appellant's counsel. They urged that the prosecution has given clinching evidence on the aspect of (Downloaded on 30/06/2022 at 08:54:58 PM) (12 of 27) [CRLAD-121/2019] motive inasmuch as, the appellant herein and the co-convict Bashir Khan (since deceased) were involved in a long standing extramarital affair. Shri Ramjan Khan was humpbacked and the appellant had a strong disliking for him. She and her paramour Bashir Khan hatched a conspiracy and acting in furtherance thereof, the physically challenged man Shri Ramjan Khan was killed by inflicting a lathi blow on his head. The son Abdul Rahim @ Abdul Rehman, who was a simpleton, saw the incident but he was threatened by the accused persons. The boy got terrified and roamed around aimlessly for 10-12 days. In the meantime, the family members, who had no clue about the whereabouts of Abdul Rehman, bonafide lodged the missing person report. However, as soon as Abdul Rahim returned home and shared the details of his father's fate with his uncle, the written report (Ex.P/17) came to be filed on the basis whereof the FIR (Ex.P/18) was registered. The appellant was arrested. She gave a voluntary information to the I.O. under Section 27 of the Evidence Act. The I.O. in turn, requested the SDM to come down to the village Jalandhari Didaniya and in his presence, the dead body was disinterred. As the body remained buried underground for a significant period of time, all the body parts disintegrated. Nonetheless, the family members could easily identify that the skeletal remains were of Ramjan Khan, their close family member. They thus urged that the prosecution has proved its case as against the appellant beyond all manner of doubt on the strength of the direct evidence of Abdul Rahim @ Abdul Rehman, son of the appellant and the deceased and the grave incriminating recoveries made at the instance of the appellant in furtherance of the informations provided by her to the I.O. under Section 27 of the Evidence Act. (Downloaded on 30/06/2022 at 08:54:58 PM)
(13 of 27) [CRLAD-121/2019] On these grounds, they implored the Court to affirm the impugned Judgment while dismissing the appeal.
8. We have given our thoughtful consideration to the submissions advanced at bar and have carefully gone through the impugned Judgment as well as the record.
9. The case of the prosecution as against the appellant is based on two sets of evidence, (i) the direct testimony of Shri Abdul Rahim son of the appellant and the deceased and (ii) the circumstantial evidence in the form of recoveries of dead body, clothes of the deceased and the weapon of offence.
10. Before we proceed to discuss the evidence of star prosecution witness Abdul Rahim @ Abdul Rehman, it would be pertinent to mention here that the Missing Person Report (Ex.P/4) came to be lodged by Shaley Mohammed on 10.09.2012 wherein, it was alleged that his cousin brother Ramjan Khan had gone away from his house about 10-12 days ago and was not traceable. It cannot be gainsaid that the missing person report would definitely have been lodged with all possible consultation having taken place amongst the family members. In order to justify the delay in lodging of the FIR and to give credence to the testimony of the sole eye-witness Abdul Rahim @ Abdul Rehman (PW-12), the prosecution claimed that the boy was threatened by the accused appellant and Shri Bashir Khan after they had murdered Ramjan Khan and as a result, he was compelled to leave his house and kept on roaming around for 10-12 days before returning home and thereafter, he told his family members about the fate which (Downloaded on 30/06/2022 at 08:54:58 PM) (14 of 27) [CRLAD-121/2019] had befallen his father. However, on a perusal of the missing person report (Ex.P/4), it becomes clear that in this report which came to be lodged by Shri Shaley Mohammed (PW-2) on 10.09.2012, there is no reference whatsoever that any of the offsprings of the deceased was also missing. The M.P.R. (Ex.P/4) was lodged on 10.09.2012 with the clear allegation that Shri Ramjan was missing from his house. In this background, if Shri Abdul Rehman son of the deceased was also not traceable then, this fact was bound to have been mentioned in the missing person report. This omission is very significant and would have a bearing on the fate of the prosecution case.
It is categorically mentioned in the MPR that Ramjan Khan was wearing a pigeon gray coloured Kurta and lungi and a white coloured cap. When Shaley Mohammed was confronted with this fact in his cross-examination, he tried to explain that Chanda told him about the attire worn by the deceased at the time of his disappearance. Shaley Mohammed, during cross-examination, initially admitted that before lodging the M.P.R., he had consulted with his brothers. Then he resiled from this fact. In later part of his cross-examination, he again admitted that he had met his brothers and cousins before lodging the missing person report. The witness stated that Deen Mohammed, Basheer Khan, Shakoor and Rasheed did not tell him that they had seen the accused Bashir Khan entering the house of Ramjan on 30.08.2012. Apparently, the entire sequence of events, as mentioned above, would indicate that the witness intentionally tried to hide the factum of meeting/consulting his relatives before lodging the missing person report. The FIR (Ex.P/18) came to be filed on 11.09.2012 by another cousin brother of Ramjan Khan namely (Downloaded on 30/06/2022 at 08:54:58 PM) (15 of 27) [CRLAD-121/2019] Deen Mohammed wherein, it was mentioned that Bashir Khan was seen entering the house of the deceased Ramjan Khan on the fateful night. It is in order to escape the adverse impact of this grave omission that the witness preemptively claimed not to have consulted his family members before the missing person report was lodged. However, even if this significant omission is ignored for a moment then also, the fact remains that admittedly, the family members had started an active search for Ramjan for 3-4 days after he was not seen in the vicinity. Without any doubt, while the search operations were being undertaken, the family members would have met each other and in these circumstances, if any of them had actually seen Bashir Khan entering the house of the deceased then there was no reason as to why FIR would not have been filed immediately. The material witnesses from the complainant side have categorically asserted that the accused appellant and Bashir Khan were involved in an illicit extramarital affair. That being the situation, the fact of Bashir Khan's clandestine entry into the house of the deceased Ramjan, who was not seen for 3-4 days thereafter, would definitely have alarmed the family members and there was no reason whatsoever for not lodging an FIR and instead, to file a simple MPR wherein also, the fact of Bashir Khan's secret entry into the house of the deceased is not recorded. Hence, the gross delay in lodging of the FIR (Ex.P/18) gains utmost significance. In order to explain this delay, the prosecution witnesses Shaley Mohammed (PW-2) and Deen Mohammed (PW-4) claimed that the accused persons had threatened Abdul Rahim @ Abdul Rehman and thus, he went away from his home and returned after 10-12 days whereafter, he divulged the fact that his mother and Bashir Khan had killed his (Downloaded on 30/06/2022 at 08:54:58 PM) (16 of 27) [CRLAD-121/2019] father. However, as per the statement of Deen Mohammed, he, Shakoor, Basheer Khan and Rasheed had seen the accused Bashir Khan entering the house of the deceased which fact would be sufficient to alarm them and they would be expected to lodge an FIR with the police, if at all, there was a ring of truth to their story. The other three persons namely Shakoor, Basheer Khan and Rasheed who also allegedly noticed Bashir Khan's entry in the house of Ramjan Khan, were not examined during trial.
Shri Deen Mohammed (PW-4) admitted in his cross- examination that he did not disclose to him that he had seen Bashir Khan entering the house of Chanda and Ramjan when Shaley Mohammed was preparing the missing person report. He also admitted that he was on enimical terms with Chanda and Bashir for the last 15-20 years.
11. Now, we proceed to test the veracity of the explanation given by the prosecution regarding the gross and inordinate delay of 12 days in lodging of the FIR. The sole justification, which was offered for this inordinate delay by the informant PW-2 Shaley Mohammed and PW-4 Deen Mohammed, was that Abdul Rahim @ Abdul Rehman son of the deceased and the appellant herein, approached them about 10-12 days after the incident and divulged that his father had been murdered by his mother (the appellant herein) and the accused Bashir Khan.
Majid (son), Chhota and Asman (daughters), children of Ramjan, were admittedly present in the house when the alleged incident took place. However, the I.O. made no effort whatsoever to record their statements.
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12. Now we proceed to analyse the testimony of the star prosecution witness Abdul Rahim @ Abdul Rehman (PW-12) who stated in his examination-in-chief that his father was killed by his mother Chanda and Bashir Khan by giving him a lathi blow. He tried to intervene on which he was threatened and was forced to go away by giving him a sum of Rs.100/-. He left his house and stayed in a Bhandara for few days. Then, he boarded a train and proceeded to village Ajeet where his cousin brother Sahidullah lived. He told Sahiddulah about the incident. Sahidullah brought him back to his house. He shared complete details of the incident with his family members and the FIR came to be filed thereafter. In cross-examination, Shri Abdul Rehman admitted that they were four siblings in all. Chhota was aged about 20-21 years, Asman was aged about 12 years and Majid was aged about 7-8 years.
Even if it is believed for a moment that Shri Abdul Rahim @ Abdul Rehman was threatened and forced to go away by the accused persons then also, in natural course of events, the family members i.e. Shaley Mohammed and Deen Mohammed would definitely be expected to approach the remaining siblings so as to make an enquiry about the fate of their father the deceased Ramjan Khan. No effort whatsoever was made either by the family members or by the I.O. to make any such enquiry from the other three children.
Abdul Rahim @ Abdul Rehman, when cross-examined, virtually demolished the story put-forth by the prosecution for justifying the delay in lodging of the report. The significant admissions as appearing in the cross-examination of Abdul Rahim @ Abdul Rehman are reproduced herein below for the sake of ready reference:
(Downloaded on 30/06/2022 at 08:54:58 PM)
(18 of 27) [CRLAD-121/2019] "....;g ckr lgh gS fd eSaus nhu eksgEen] jlhn] clhj] lqye s ku dks ckr vthr ls okfil vkdj crk;hA bu yksxks dks lenMh ls vkus ds ,d fnu ckn crk;hA ?kVuk ds nqljs fnu eS lenMh ls vk x;k FkkA lenMh ls vkrs oDr lghnqYyk esjs lkFk FkkA ----------------------------------------------------- ?kVuk ds fnu eSa uhan esa Fkk ml le; eSa pkSd esa lks jgk FkkA nhueksgEen dk ?kj esjs ?kj ds ikl gSA clhj dk ?kj FkksMk nwj gSA jlhn dk ?kj esjs ?kj ds ikl gSA ;g ckr lgh gS ftl fnu clhj esjs ?kj vk;k ml fnu nhueksgEen] clhj] jlhn esjs ?kj ugha FksA clhj] nhueksgEen] jlhn ds edku esa vU; lnL; Hkh jgrs gSA eS ml fnu ?kVuk ds ckn clhj nhueksgEen ds ?kj x;k FkkA eSa ?kj x;k rc nhueksgEen] clhj] jlhn Hkh ?kj esa FksA eSua s mudks ckr crk;h Fkh fd esjs cki dks ekj fn;k g SA eSa nhueksgEen ds ?kj esa jgk Fkk muds ?kj gh jgkA
------------------------------------------------------------------------------------------------------------------------------------------------- eq>s nhueksgEen dks eSaus ?kVuk crk;h rks mUgksua s ugha dgk fd Fkkus esa fjiksVZ nsrs gSA
---------------------------------------------------------------------------------------------- esjs firkth ds fpYykus ij eSa tkx x;kA fpYykus ds nkSjku esjs HkkbZ cfgu lks;s jgsA jfM;k /khjs /khjs gks jgh FkhA esjh firkth ds dqcM Fkh oks lh/ks [kMs ugha gks ldrs FksA eSa dejs esa ugha x;k FkkA esjs firk jfM;k dj jgs Fks fd ekjs js-------- ekjs js---------A vkl iM+kSl ds yksx ugha tkxs FksA jfM;k lquus ds pkj ikap ?kaVs rd eSa pkSd es jgkA ml nkSjku esjh ekW ls dksbZ ckrphr ugha gqbZA pkj ikap ?kaVs ds ckn eSa nhueksgEen ds ?kj x;kA
------------------------------------------------- nhu eksgEen ds ?kj tkus ij nhueksgEen us eq>ls iqNk rks eSua s crk;k fd esjs firk dks clhj o pank us ekj fn;kA fQj nhueksgEen o eSa gekjs ?kj okfil vk;kA nhu eksgEen dks eSua s ?kj ykdj dqN ugha fn[kk;kA eSa vkSj nhueksgEen ge nks ?kaVs gekjs ?kj ij jgsA nks ?kaVs ckn ge nhueksgEen ds ?kj x;sA fQj nhueksgEen us vU; yksxksa dks cqyk;k gks rks eq>s ugha irkA lqysekupkpk] clhj pkpk] jlhn vk;s FksA eSua s mu lHkh dks dgk Fkk fd esjs firk dks ekj fn;kA------------------------------------------------------------------------ eS jkr jgk ml le; esjs pkpk o mlds ifjokj okys ogh Fks] mu lHkh us eq>s ns[kk FkkA -------------------------------------- iqfyl us eq>s dHkh ugha cqyk;kA esjs c;ku esjs ?kj esa gq, Fks tks ?kVuk ds 16 fnu ckn gq,A ...."
(Emphasis supplied) A threadbare analysis of the above extracts from the cross- examination of Abdul Rahim @ Abdul Rehman, makes it clear that the witness candidly admitted that he went to the house of his (Downloaded on 30/06/2022 at 08:54:58 PM) (19 of 27) [CRLAD-121/2019] uncle Deen Mohammed immediately after the incident and told him all the details. Even if the version as set out in the FIR that the accused persons had threatened Abdul Rehman of dire consequences and that he was forced to go away from his house, is considered to be true, then also, in the natural course of events and as expected by natural human conduct, Abdul Rehman would definitely have approached his family members rather than rushing away from the village without telling anyone regarding his father's fate.
Without prejudice to the above, it is noteworthy that Abdul Rahim @ Abdul Rehman claimed in his examination-in-chief that he had gone to the house of his paternal aunt (Bhua) in village Ajeet and that on reaching her house, he told his aunt and his cousin brother Sahidullah (PW-6) regarding the incident. If we peruse the statement of Sahidullah (PW-6), it comes out that the witness claimed that Abdul Rehman came to his house about 5-7 days after the incident and he immediately divulged as to what had happened to his father. The witness admitted in his cross- examination that after Abdul Rahim @ Abdul Rehman told him about the incident, he did not call the police thinking that he would tell the family members and they would take further steps. Abdul Rehman stayed with him for one day. On the next day, they proceeded to Pokran and then on to Jalandhari. Even if the version provided by Sahidullah is believed to be true, apparently, he and Abdul Rehman must have reached the village Jalandhari about 7-8 days after the incident and definitely before lodging of the MPR. Thus, the total inaction on part of the family members i.e Shaley Mohammed and Deen Mohammed in lodging a timely FIR completely demolishes the prosecution case and so also the (Downloaded on 30/06/2022 at 08:54:58 PM) (20 of 27) [CRLAD-121/2019] credibility of the evidence of Abdul Rahim @ Abdul Rehman. We have thus no hesitation in holding that the evidence of the so- called eye-witness Abdul Rahim @ Abdul Rehman is not reliable. The witness was undeniably tutored to give evidence against the appellant. The version as deposed by him in his examination-in- chief was completely demolished in cross-examination. Thus, the evidence of Abdul Rahim @ Abdul Rehman (PW-12) is fit to be discarded.
13. The next circumstance on which, the prosecution relied upon so as to fix the liability of the appellant herein for the murder of her husband, was the purported disinterment of the dead body of Shri Ramjan Khan in furtherance of the information (Ex.P/25) allegedly provided by the accused Chanda to the I.O. under Section 27 of the Evidence Act. The I.O. Shri Ramesh Kumar (PW-
13) stated that after the FIR came to be registered, he proceeded to the place of incident, apprehended the accused Chanda and interrogated her. She gave an information under Section 27 of the Evidence Act (Ex.P/25) for pointing out the place where dead body of her husband had been buried after he was murdered. The I.O. also claimed that he gave a requisition (Ex.P/26) to the SDM after receiving this information. As has been noted above, the receipt of the SDM on this requisition bears the date 11.09.2012. The I.O. Ramesh Kumar, claimed that the dead body, which was almost a skeleton, was disinterred in furtherance of the information provided by the accused Chanda under Section 27 of the Evidence Act and it was identified to be that of Ramjan Khan by his cousin brother Deen Mohammed. However, there is no room for doubt that the entire procedure whereby the I.O. claims to have (Downloaded on 30/06/2022 at 08:54:58 PM) (21 of 27) [CRLAD-121/2019] recorded the statement of the accused under Section 27 of the Evidence Act and recovered the dead body, is nothing but a sheer piece of fabrication. In this regard, we would like to refer to the following lines from the FIR (Ex.P/18):
"....vr% fuosnu gS fd eqfYteku c"khj o pUnk ds f[kykQ jetku[kka dh gR;k dk eqdnek ntZ dj budh fu"kkunsgh ij jetku[kka dh yk"k cjken dj dkuwuh dk;Zokgh djkosA...."
The above recital in the FIR clearly reflects that the first informant had already decided that the accused appellant and the co-accused were responsible for the murder of Ramjan Khan and the dead body should be recovered at their instance. The I.O. Shri Ramesh Kumar (PW-13) claimed in his evidence that the dead body was exhumed vide Memorandum (Ex.P/2) in furtherance of the information provided by the accused Chanda under Section 27 of the Evidence Act. However, a bare perusal of the document (Ex.P/2) would indicate that there is no reference therein that the recovery was being effected in furtherance of the information provided by the accused Chanda @ Chandu to the I.O. under Section 27 of the Evidence Act. The I.O. Shri Ramesh Kumar and the witnesses Shaley Mohammed (PW-2) and Deen Mohammed (PW-4) claimed that the body was recovered in presence of the SDM and Circle Officer Pokran. However, the Memorandum (Ex.P/2) does not bear any recital that these officers were present at the spot. For the sake of repetition, we may mention here that the requisition (Ex.P/26) which the Investigating Officer claims to have forwarded to the SDM, Pokran for conducting the exhumation proceedings was received by the SDM on 12.09.2012. Apparently, thus, the proceedings of exhumation were undertaken without following the procedure provided in Rule 6.30 of the Rajasthan (Downloaded on 30/06/2022 at 08:54:58 PM) (22 of 27) [CRLAD-121/2019] Police Rules, 1965 and Section 176 of the Cr.P.C. which read as below:-
"6.30 Inquests. - (1) An officer incharge of a Police station shall, upon receipt of information of the sudden or unnatural death of any person, when the body of such person within the local jurisdiction of his police station, immediately send information to the nearest magistrate authorised to hold inquests and shall proceed to the place where the body is and hold an investigation in the manner prescribed by section 174, Code of Criminal Procedure. When the Sub- Inspector incharge of the Police Station through illness or absence from the station house, is himself unable to carry out the investigation, he shall at the first convenient opportunity proceed to the place where the body of the deceased person was found, and shall personally verify the results of the investigation.
(2) In cases where the body is not found, or has been buried, there can be no investigation under section 174, Code of Criminal procedure.
In such cases, if there are reasonable grounds for suspicion that a congnizable offence has been committed, the police shall register a case and commence investigation : Provided that the following cases shall be exceptions to this rule :
(a) In the case of a death by violence occurring within the wall of a military prison or civil jail the police shall not make an investigation into the cause of death when an inquest has been held by a competent magistrate.
(b) Upon receipt of information of a sudden or unnatural death within the walls of a prison the officer incharge of the police station concerned shall send immediate intimation to the senior magistrate present at headquarters and shall proceed to the prison and place a guard over the body and shall allow neither the body nor anything which may have caused the death of the deceased to be moved until the arrival of a magistrate."
"176. Inquiry by Magistrate into cause of death. (1) When any person dies while in the custody of the police or when the case is of the nature referred to in (Downloaded on 30/06/2022 at 08:54:58 PM) (23 of 27) [CRLAD-121/2019] clause (i) or clause (ii) of sub- section (3) of section 174] the nearest Magistrate- empowered to hold inquests shall, and in any other case mentioned in sub-
section (1) of section 174, any Magistrate so empowered may hold an inquiry into the cause of death either instead of, or in addition to, the investigation held by the police officer; and if he does so, he shall have all the powers in conducting it which he would have in holding an inquiry into an offence.
(2) The Magistrate holding such an inquiry shall record the evidence taken by him in connection therewith in any manner hereinafter prescribed according to the circumstances of the case.
(3) Whenever such Magistrate considers it expedient to make an examination of the dead body of any person who has been already interred, in order to discover the cause of his death, the Magistrate may cause the body to be disinterred and examined.
(4) Where an inquiry is to be held under this section, the Magistrate shall, wherever practicable, inform the relatives of the deceased whose names and addresses are known, and shall allow them to remain present at the inquiry. Explanation.- In this section, expression"
relative" means parents, children, brothers, sisters and spouse."
The prosecution did not examine the SDM concerned in support of its case and hence, the theory that the officer was present at the time of exhumation proceedings, is a sheer exaggeration. Had these proceedings been conducted in presence of the SDM, this fact would certainly have been mentioned in the memorandum (Ex.P/2) and the SDM would be expected to attest/affirm the same. Thus, the entire endeavor of the Investigating Officer wherein he claimed that the SDM was informed and his permission was sought for exhumation of the dead body was created as an afterthought for seeking validation of the tainted exhumation proceedings. Even otherwise, the timeline, (Downloaded on 30/06/2022 at 08:54:58 PM) (24 of 27) [CRLAD-121/2019] which has been narrated above, makes it doubtful that the I.O. could have, in a short span of time of less than two hours after registration of the FIR, arrested the accused appellant, recorded her statement under Section 27 of the Evidence Act and dug out the dead body after informing the SDM and also securing his presence. The absence of time on the Memorandum (Ex.P/2) and the information provided by Chanda (Ex.P/25) affirms our conclusion that these documents were created by the Investigating Officer post investigation. Hence, the story that the dead body of Ramjan Khan was recovered in furtherance of the information provided by the accused Chanda under Section 27 of the Evidence Act is unworthy of credence and the said circumstance is fit to be discarded.
14. At this stage, we would like to mention that the defence counsel raised a pertinent argument that the sole objective of the prosecution witnesses Shaley Mohammed and Deen Mohammed to implicate the accused Chanda in the case was to usurp the property of Ramjan Khan and that is why, they managed to put Chanda behind bars by framing her for the alleged murder of Ramjan Khan and after Abdul Rehman @ Abdul Rahim had given evidence, he is missing since the year 2018 and might even have been murdered. In this regard, Dr. Acharya contended that D.B. Habeas Corpus Petition No.68/2019 came to be filed by the appellant Chanda wherein, a specific assertion was made that after she was put behind bars in this case, her son Abdul Rehman @ Abdul Rahim was living all alone at her matrimonial home. He is mentally challenged. The husband of the appellant was having significant property in the form of lands and buildings which are (Downloaded on 30/06/2022 at 08:54:58 PM) (25 of 27) [CRLAD-121/2019] now in possession of her brothers-in-law. Abdul Rehman @ Abdul Rahim has illegally either been confined or might have been eliminated by the family members of Ramjan Khan.
We perused the original file of the above habeas corpus petition and it is reflected therefrom that that despite repeated directions given by the court, the police officials have failed to provide any clue regarding fate of the corpus Abdul Rahim and he has not been found and presented in the court till date. Apparently thus, there is merit in the contention of the defence counsel that the witness Abdul Rahim @ Abdul Rehman, being a simpleton, was tutored to give false evidence against the appellant who was put behind bars on the basis of totally cooked up evidence. After Abdul Rahim gave evidence in the Court, he himself is missing for the last four years and might even have been eliminated. Thus, theory of motive works equally as against the appellant as it does against the complainant party.
15. PW-10 Dr. Anil Gupta was examined by the prosecution for proving the cause of death of Shri Ramjan Khan. The witness stated that he was posted as Medical Officer at CHC, Pokran on 12.09.2012. On receiving a police requisition, a Medical Board constituted of Dr. Anil Gupta himself, Dr. Harlal and Dr. Mohd. Yakub, carried out autopsy upon the remains. The Board observed that the body was decomposed to such an extent that the bones were exposed. Skin tags were attached on some parts of the body which was fully covered in dirt. The body was not fit to be identified. Hair was present on the skull. The eyes were occluded with dirt. The skull was intact and no injuries were noticed thereupon. Fracture was not noticed on any part of the skeleton. (Downloaded on 30/06/2022 at 08:54:58 PM)
(26 of 27) [CRLAD-121/2019] The Board was of the view that the cause of death of Ramjan Khan could not be ascertained and hence, the visceras were preserved and were forwarded to the FSL for receiving the histopathological opinion. The witness proved the postmortem report (Ex.P/24). The Board was of the view that the death of the victim occurred 15-20 days before the postmortem was carried out.
In view of the medical evidence, apparently, the allegation set out in the testimony of Abdul Rehman that his father was killed due to a lathi blow inflicted on the head is contradicted. The prosecution has miserably failed to prove that death of Shri Ramjan Khan was homicidal.
16. As a consequence of the above discussion, we have no hesitation in holding that the prosecution has failed to prove the charges against the appellant by leading reliable evidence. The impugned judgment does not stand to scrutiny.
17. As a consequence, the appeal deserves to be accepted. The impugned Judgment dated 12.03.2019 passed by the learned Additional Sessions Judge, Pokran, District Jaisalmer in Sessions Case No.08/2017 (21/2016), is hereby quashed and set aside. The appellant is acquitted of the charges. She is in custody and shall be released from prison forthwith if not wanted in any other case.
The appeal is allowed in the above terms.
18. However, keeping in view the provisions of Section 437-A Cr.P.C., the appellant is directed to furnish a personal bond in the sum of Rs.40,000/- and a surety bond in the like amount before (Downloaded on 30/06/2022 at 08:54:58 PM) (27 of 27) [CRLAD-121/2019] the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the appellant shall appear before the Supreme Court.
19. Record be returned to the trial court forthwith.
(REKHA BORANA),J (SANDEEP MEHTA),J
41-Tikam Daiya/-
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