Rajasthan High Court - Jodhpur
Varju Devi vs State on 29 April, 2021
Bench: Sandeep Mehta, Devendra Kachhawaha
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No.1391/2017
Varju Devi wife of Ramaram, by caste Jat, Resident of Pokrasar,
Police Station Chohtan, District Barmer.
(At present lodged in District Jail, Barmer).
----Appellant
Versus
The State of Rajasthan.
----Respondent
For Appellant(s) : Mr. D.S. Sodha.
For Respondent(s) : Mr. R.R. Chhaparwal, PP.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA
JUDGMENT
Judgment pronounced on ::: 29/04/2021
Judgment reserved on ::: 08/02/2021
BY THE COURT : (PER HON'BLE MEHTA, J.)
1. The appellant herein has been convicted and sentenced as below vide Judgment dated 09.08.2017 passed by the learned Additional Sessions Judge, No.2, Barmer in Sessions Case No.21/2016 (02/2013):
Offences Sentences Fine Fine Default
sentences
Section 302 IPC Life Imprisonment Rs.5,000/- 2 Months' S.I.
Section 380 IPC Section 7 Years' S.I. Rs.1,000/- 1 Month's S.I. All the substantive sentences were ordered to run concurrently. (Downloaded on 05/05/2021 at 08:18:24 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. Facts relevant and essential for disposal of the appeal are noted herein below:
4. Siddha Ram (PW-2) lodged a written report (Ex.P/2) at the Police Station Chohtan, District Barmer on 08.01.2012 at about 07.40 PM. alleging inter alia that he had gone to Gandhi Dham about 20 days prior, with respect to his job. He got a call from his family members on 07.01.2012 between 07.00-08.00 PM that in the evening, his daughter-in-Law Varju Devi wife of Ramaram, threw his younger son Gogaram, aged 12 years, into the water tank with the intention to kill him and thereafter, she absconded from the house with her belongings, etc. It was further alleged that an enquiry was made and the family members saw some foot-prints on the basis whereof, they assumed that Smt. Varju had called an unknown man with a vehicle and then eloped with him via Netrar-Pokrasar Road. Lakharam, Khemaram, Gangaram, Nawlaram, Ramaram, Peera Ram and some other villagers were searching for the accused. The dead body of Gogaram was taken out from the water tank. His wife called him and gave him this devastating information on which, he immediately rushed back to his village. A conjecture was made that Varju suspected that Gogaram might have seen her in a compromising position and that is why, she had beaten up Gogaram and then murdered him by pushing him down into the water tank. While escaping, Varju had (Downloaded on 05/05/2021 at 08:18:24 PM) (3 of 25) [CRLA-1391/2017] also taken away their mobile phone with sim number 7742034032. The golden ear studs worn by the child were also missing. On the basis of this report, FIR No.8/2012 (Ex.P/24) came to be registered at the Police Station Chohtan, District Barmer for the offences under Sections 302, 201 and 120B of the IPC.
5. The case was assigned to the SHO Ram Singh (PW-9) who carried out the requisite steps of investigation and prepared site inspection plan and Panchnama, etc. The child's dead body was subjected to autopsy at the Government Hospital, Chohtan from where, a postmortem report (Ex.P/1) was issued opining that cause of death was asphyxia by drowning. Statements of concerned witnesses were recorded. The accused appellant was arrested and acting on the informations (Ex.P/17 & Ex.P/18) purportedly provided by her to the I.O. under Section 27 of the Indian Evidence Act, a Nokia mobile phone (Ex.P/8) and the golden ear-studs (Ex.P/15) alleged to be of the victim, were recovered. The material articles were forwarded to the FSL for analysis. After concluding investigation, a charge-sheet was submitted against the petitioner in the concerned court for the offences punishable under Sections 302 and 380 IPC. The case was committed to the Court of the Additional Sessions Judge, No.1 Barmer from where, it was transferred to the Court of the Additional Sessions Judge No.2, Barmer for trial. Charges were framed against the appellant for these offences. She pleaded not guilty and claimed trial. The prosecution examined as many as 22 witnesses and exhibited 34 documents to prove its case. Upon (Downloaded on 05/05/2021 at 08:18:24 PM) (4 of 25) [CRLA-1391/2017] being questioned under Section 313 Cr.P.C., the accused appellant denied the allegations levelled by the prosecution. She claimed to be innocent and stated that the child had accidentally fallen into the water tank and that she had been falsely implicated in this case. Upon hearing the arguments advanced by the learned Public Prosecutor and the learned defence counsel and after appreciating the evidence available on record, the learned Trial Judge, proceeded to convict and sentence the appellant as above. Hence this appeal.
6. Shri D.S. Sodha, learned counsel representing the appellant, vehemently and fervently urged that the entire prosecution case is false and fabricated. The evidence of the star prosecution witness Harku (PW-4) is not reliable. The theory of motive as portrayed by the prosecution that the appellant was involved in some extra- marital affair and that she murdered the boy so as to cover up her illicit liaison, is totally concocted because neither any evidence was collected by the I.O. to prove this allegation nor did any witness allege so in the evidence during trial. The recoveries shown to be effected from the appellant are totally fabricated. The allegation that the appellant went absconding after the incident, is totally false because she was kept confined at Police Station immediately after lodging of the report. Marriage of the appellant was soleminsed with Ramaram (PW-7) (brother of the deceased) about 7-8 months ago who was not happy with the relationship and the appellant was being regularly harassed and humiliated in the matrimonial home. The family members became apprehensive that the appellant may initiate police action against them. In the (Downloaded on 05/05/2021 at 08:18:24 PM) (5 of 25) [CRLA-1391/2017] meantime, the unfortunate accident occurred and taking advantage thereof, the appellant has been roped into the case as a preemptive measure. On these submissions, Shri Sodha urged that the impugned Judgment deserves to be quashed and set aside and the appellant is entitled to be acquitted of the charges.
7. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by Shri Sodha. He urged that the minor witness Harku (PW-4) had no reason whatsoever to falsely implicate the appellant for the murder of her brother Gogaram. The theory put-forth by defence that Gogaram accidentally fell into the water tank is totally fabricated. The opening of the water tank is very small and it is impossible to believe that the child could accidentally fall into such a small aperture. The conduct of the appellant in absconding from the matrimonial home immediately after the incident, gives a strong indication of her guilty state of mind. While escaping, she stole and took away the mobile phone belonging to her matrimonial relatives which was recovered at her instance during investigation. The golden ear-studs worn by the victim were also stolen by the appellant and the same were also recovered by the I.O. on the basis of the information supplied by her under Section 27 of the Evidence Act. The appellant failed to offer any explanation as to how she came into possession of the mobile and the ear-studs of the child and this circumstance by itself is sufficient to hold her guilty. On these grounds, learned Public Prosecutor sought dismissal of the appeal.
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(6 of 25) [CRLA-1391/2017] 8. We have given our thoughtful consideration to the
submissions advanced at bar. Carefully perused the impugned Judgment and, thoroughly re-appreciated the evidence available on record.
9. Suffice it to say that the fact regarding the appellant having been married to Ramaram (elder brother of the deceased) about 8 months before the incident is undisputed. As the marriage of the appellant had been solemnised in the family of Siddharam (PW-2) just 8-10 months ago, there would have to exist very strong motive for the appellant to have murdered her own young brother-in-law because no sane human-being could, without a strong reason, be expected to take such a drastic step.
Thus, firstly we proceed to analyse the evidence of the material prosecution witnesses regarding motive attributed to the appellant for committing the offence and the ocular testimony as well. The prosecution has alleged that the appellant was indulged in some kind of illicit affair with another man and thus, she wanted to escape from the matrimonial home. The victim Gogaram was a stumbling block in her way and that is why, the appellant eliminated him in the manner alleged.
10. Siddharam (PW-2) the first informant, made a bald allegation in his evidence that Varju murdered his son because she was involved in an affair with some other person. However, he did not elaborate the foundation for making such an aspersion. A suggestion was given to the witness in cross-examination that the appellant was being harassed and humiliated in the matrimonial (Downloaded on 05/05/2021 at 08:18:24 PM) (7 of 25) [CRLA-1391/2017] home on account of demand of dowry which the witness refuted. However, at the conclusion of his statement, the witness admitted that whatever allegations he was levelling in his statement, were hearsay. Thus, the evidence of this witness does not provide any incriminating material to establish motive against the appellant.
11. Sita Devi (PW-3), mother-in-law of the appellant herein and the mother of the deceased Gogaram, did not utter a single word in her sworn testimony that the appellant herein was involved in some kind of illicit affair or that she wanted to desert Ramaram. Therefore, no inference of motive can be attributed to the appellant from the evidence of this witness as well. As a matter of fact, as the women of the family would be the best persons to observe any suspicious activity of one amongst them being involved in something fishy. As Sita Devi did not observe anything suspicious in conduct of the appellant, manifestly, the whole motive theory has to fail.
12. Harku (PW-4) is the most important witness of the prosecution because she was depicted to be the sole eye-witness of the incident. She was a child aged 15 years at the time of incident. She alleged that her elder brother Ramaram (PW-7) was married to the appellant about 8-9 months earlier. She was one amongst the four children of her parents. On 07.01.2012, when she came back from school, she saw that her sister-in-law Varju had dunked her brother Gogaram into the water tank built inside the courtyard of their house. Only Varju and Gogaram were present in the house when she returned home from school. When (Downloaded on 05/05/2021 at 08:18:24 PM) (8 of 25) [CRLA-1391/2017] she entered the house, she heard the fervent cries of Gogaram and got alarmed. She told Varju that Gogaram was screaming on which, Varju threatened her that she should keep quiet else she too would be killed. Varju told her to bring the she-camel from the fields. Her elder sister Kunani also reached home just behind her. She went to fetch the she-camel and returned home at about 6 O' clock and saw her mother Sita Devi (PW-3) and her brother Ramaram (PW-7) looking out for Gogaram. Her mother asked the witness about Gogaram, upon which, she immediately divulged that Varju Devi had pushed Gogaram into the water tank. Her mother called Lakharam, Gangaram and Ramaram who checked the water tank and saw Gogaram lying therein but by that time, he had passed away. Varju fled away in the meantime. The witness also alleged that Varju used the mobile phone of her brother Gogaram to secretly talk to some person. The SIM number of Gogaram's mobile phone was 7742034032. Varju took away the said mobile phone while leaving the house. She also took away the golden ear-studs worn by her brother Gogaram. Varju killed her brother Gogaram because she wanted to elope with some other man. Her brother did not want to give the mobile phone to Varju.
In cross-examination, the witness stated that her school was about 3 kms. away from her dhani. She had overheard Varju Devi talking to another man on the mobile phone about 5-6 days before the incident. Her elder sister Kunani was studying in X Standard. She used to accompany Kunani while going and coming back from school. On the day of the incident, Kunani had walked slowly and thus, she could not keep pace with the witness and reached home (Downloaded on 05/05/2021 at 08:18:24 PM) (9 of 25) [CRLA-1391/2017] about half an hour late. The witness admitted that when Kunani came home, she was not present there because it took her half an hour to fetch the she-camel. She went to search the she-camel in the nearby dhani which was about a kilometer away from her home. She did not tell any person in the nearby dhanis that Gogaram had been killed because she felt intimidated by the threat given to her by Varju. As soon as she returned to her dhani from her school, she heard the cries of Gogaram. Her mother and sister Kunani went to look out for Ramaram, Lakharam and Gangaram whose dhanis are at a distance of about half a kilometer from their dhani. She denied the suggestion that Varju was being harassed in the matrimonial home on account of demand for dowry and that she had been turned out of the matrimonial home on this count. She also denied the suggestion that a panchayati was held to resolve the dispute. She claimed to have seen Varju pushing Gogaram into the water tank. She did not try to save him because Varju had threatened her. She also explained the reason why she did not raise an alarm even though Purkharam's dhani was adjacent to theirs. When she came back with the she-camel, Varju was present in the house and her mother and sister were searching for Gogaram.
13. Kunani (PW-5) stated in her evidence that Varju was her Bhabhi (sister-in-law). On 07.01.2012, her younger sister Harku reached home from school earlier. When she reached home, Harku had gone to fetch the she-camel. Her mother had gone to the house of Joraram because her brother Ramaram (PW-7) used to work there. Her mother came back at about 06.30 PM. When the (Downloaded on 05/05/2021 at 08:18:24 PM) (10 of 25) [CRLA-1391/2017] witness reached home, her Bhabhi Varju was present there. Her sister Harku informed her that Gogaram had been pushed into the water tank by Varju. Thereafter, they went to fetch Ramaram, Lakharam and Gangaram who took out Gogaram from the water tank. Gogaram had died by that time. Meanwhile, Varju fled from the house. Gogaram was having the mobile phone which Varju wanted to use for calling someone. Gogaram did not give the phone to Varju and thus, he was killed. Varju wanted to elope with some other man by deserting her brother Ramaram and that is why, she killed Gogaram. While escaping, Varju took away the mobile phone and golden ear-studs of Goga Ram. In cross- examination, the witness admitted that she was studying in Class X. When she returned home from school, Varju was present there. Her mother came home after half an hour. Neither Varju talked to her nor did she try to make conversation with her. They did not have any issues with each other. For about half an hour after her mother had returned, the witness did not do anything and kept sitting idle. When her sister Harku came back with the she-camel, she informed them that Varju had thrown Gogaram into the water tank. Before receiving this information, the witness and her mother did not make any effort to look out for Gogaram. Usually, when she returned from school, Gogaram would be present in the house. On the day of the incident, she did not notice Gogaram but still, she did not ask Varju of his whereabouts. After Harku came home and told them about the unfortunate event, she and her mother approached Ramaram, Lakharam and Gangaram whose dhanis were located at a distance of about half a kilometer. The water tank was constructed in the dhani but was at a little (Downloaded on 05/05/2021 at 08:18:24 PM) (11 of 25) [CRLA-1391/2017] distance from the Farsa (a kind of room). The witness denied the suggestion that disputes were going on between them and Varju on account of demand for dowry or a panchayati took place in order to resolve this dispute.
14. Dedaram (PW-6) stated that Sita Devi called him on 07.01.2012 in the evening and told that Varju had thrown her son Gogaram into the water tank and had fled from home. At that time, the witness and his driver Ramaram were present at his house. The witness immediately sent Ramaram with a vehicle to Sita Devi's house. Ramaram reached there and called him to confirm that Gogaram had indeed been thrown into the water tank by Varju and thus, he was coming back to take him along. Thereafter, the witness and Ramaram reached the spot. Gogaram's dead body was lying outside the water tank and Lakharam, Gangaram and 3-4 other persons were standing nearby. Footprints were visible going from the place of the incident towards the road. The police arrived and he accompanied them towards the main road where, they met a driver named Ramesh who told that he had seen another vehicle going towards the village Ishrol. The police followed the vehicle. In the meanwhile, Rajuram and Gangaram arrived there and informed them that the vehicle was being driven by Shankra Ram and another person, who was not visible, was sitting behind. The witness imputed that he had heard that Shankra Ram was having an illicit relationship with Varju Devi. He alongwith Karnaram attested various spot documents as Panch Witnesses. He further stated that Varju was (Downloaded on 05/05/2021 at 08:18:24 PM) (12 of 25) [CRLA-1391/2017] arrested by the police in his presence vide arrest memo (Ex.P/7). He proved the recovery memo of the golden ear-studs (Ex.P/8.).
In cross-examination, he stated that his dhani was located at a distance of about 2 kms. from the dhani of Siddharam who was his cousin brother. Ramaram was driving his vehicle for the last 10-15 years. He did not receive any call from Sita Devi prior to 07.01.2012. He had sent his driver Ramaram to verify the information regarding the incident. When he reached the spot, Gogaram's dead body had already been taken out from the water tank. He looked around for Varju Devi. He feigned ignorance regarding the nature of relations between Ramaram and his wife Varju Devi, the accused appellant herein. He also denied the suggestion that Varju was being harassed and humiliated in the matrimonial home on account of demand for dowry and that a panchayati was held in this regard.
15. Ramaram (PW-7) is the husband of the appellant herein. He stated in his evidence that he was married to Varju about 8-9 months before the incident which took place on 07.01.2012. He had gone to the house of Joraram for labour job. His sisters Harku and Kunani had gone to their school at Pokrasar. At about 3 O' Clock, his mother Sita Devi came down to the place where he was working. Only his wife Varju and his younger brother Gogaram were present at their home. His mother left for home at about 06.00 PM. His sister called him and told him to reach home urgently. He reached there and saw Gangaram, Lakharam and Ramaram (driver of Dedaram) present there and they were pulling Gogaram out of the water tank. Gogaram was not breathing at (Downloaded on 05/05/2021 at 08:18:24 PM) (13 of 25) [CRLA-1391/2017] that time. When he enquired about the incident, his sister Harku told him that when she returned from school, she saw Varju pushing Gogaram into the water tank. Gogaram was screaming for help. Varju forcibly pushed Gogaram into the water tank and shut the lid. Harku raised an alarm whereupon, she was also threatened and was asked to bring the she-camel. Varju fled after killing Gogaram and while escaping, she took Gogaram's ear-studs and mobile phone with herself. Varju was indulged in an illicit relationship with some other persons and she wanted to talk to them on the mobile phone but Gogaram did not allow her to do so. In cross-examination, the witness admitted that the decision of marriage with Varju, was forced down upon him. His uncle Purkha Ram and aunt Nenudevi had gotten him married with Varju against his wishes. His aunt Nenudevi was the Bhua (aunt) of Varju. When he was being made to marry Varju, he protested because she had eloped with some other man about a month prior and had stayed with him for about 5-7 days. Despite his resistance, he was forced to tie the knot with Varju. However, after his marriage with Varju, he had developed a good conjugal relationship with her. On the day of the incident, he had gone for doing labour jobs at Joraram's house which was at a distance of about 1 km. from his dhani. Joraram used to pay him Rs.200/- per day for doing masonry work. There was no dispute between him and Varju before the incident took place. He never saw or heard Varju talking to unknown men on mobile phone after their marriage. He stated that Varju had killed and thrown Gogaram into the water tank based on hearsay. There were no dowry related issues between him and Varju. He denied the suggestion (Downloaded on 05/05/2021 at 08:18:24 PM) (14 of 25) [CRLA-1391/2017] that a panchayati was held in relation to this dispute. He also denied the suggestion that Gogaram accidentally fell into the water tank.
16. The evidence of the witnesses Ashok Kumar (PW-8) and Swaroop Singh (PW-12) is formal in nature.
The witnesses Lakharam son of Khemaram (PW-14), Gangaram (PW-13) and Lakharam son of Jagra Ram (PW-17) did not support the prosecution case and were declared hostile.
17. Pannaram (PW-19) was a witness of the crime scene reconstruction and proved the Fard Tarika Vaardat (Ex.P/14). In cross-examination, the witness admitted that when the crime scene was reconstructed, Varju stated before all present that Gogaram accidentally fell into the water tank while trying to pull out water.
18. Dr. Shambhoo Ram (PW-1) was one of the members of the Medical Board which carried out autopsy on the dead body of Gogaram. In his evidence, Dr. Shambhoo Ram stated that few external injuries were noticed on the body of Gogaram when autopsy was conducted. Two abrasions admeasuring 1X0.25 cm. Were viible on the sole of the right foot and three small abrasions admeasuring 1 cm.X0.25 cm. Were seen on the left ear. The cause of death was opined to be asphyxia caused by drowning. In cross- examination, the doctor admitted that there was no evidence as per the postmortem report (Ex.P/1) findings to show that the deceased was killed and then thrown/pushed into the water tank. (Downloaded on 05/05/2021 at 08:18:24 PM)
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19. The investigation of the case was initially undertaken by Ram Singh (PW-9) and concluded by Kailash Dan (PW-11).
Ram Singh (PW-9) stated that he was posted as SHO, Police Station Sedwa on 08.01.2012. He was instructed to undertake investigation of the case. He prepared various formal documents viz. Panchnama, site inspection plan, etc. He proved the procedure of investigation undertaken by him, in the following manner:
"tgka ij igys ls Fkkuk pkSgVu dk tkIrk mifLFkr Fkk] ftl ij funsZ"kkuqlkj fl)kjke dh <kf.k esa e`rd xksxkjke dh yk"k iM+h Fkh] ftldh yk"k dh QnZ lqjrgky yk"k dh izn"kZ ih 3 xokg nsnkjke] dj.kkjke dh ekStnw xh esa cukbZ ftl ij lh ls Mh esjs gLrk{kj gS] , ls ch o b ls ,Q xokgku ds gLrk{kj gSA e`rd xksxkjke dh yk"k dk QnZ iapukek :c: iapku eqfrZc fd;k Fkk tks izn"kZ ih 4 gS ftl ij lh ls Mh esjs gLrk{kj gS o , ls ch] b ls ,Q] th ls ,p o ds ls ,y iapku ds gLrk{kj gSA ,Dl LFkku ij fl)kjke dk vaxw'B fu"kku gSA ekSds ij gh ,evks lkgc dks ryc dj e`rd dh yk"k dk iksLVekVZe djok;k tkdj ckn iksLVekVZe yk"k ifjtuksa dks lqiqnZ dh QnZ lqiqnZxhukek yk"k izn"kZ ih 5 gS ftl ij lh ls Mh esjs gLrk{kj gS] , ls ch o b ls ,Q ekSrchjku ds gLrk{kj gSA esjs }kjk ?kVuk LFky dk uD"kk ekSdk o gkykr ekSdk izn"kZ ih 6 :c: ekSrchjku nsnkjke o dj.kkjke ds eqfrZc fd;k x;k] ftl ij lh ls Mh esjs gLrk{kj gS] , ls ch o b ls ,Q ekSrchjku ds gLrk{kj] o th ls ,p eqyftek ojtwnsoh ds gLrk{kj gSA tSj fgjklr eqyftek }kjk nh xbZ] bfRryk,a Øe"k% izn"kZ 11] 12] 13 gS ftl ij , ls ch esjs gLrk{kj gSA o lh ls Mh eqyftek ojtwnsoh ds gLrk{kj gSA"
The evidence of this witness is also, more or less, formal in nature.
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20. Kailash Dan (PW-11) was posted as the SHO, Police Station Chohtan. He was assigned investigation of the case on 09.01.2012. He stated that he arrested Varju vide arrest memo (Ex.P/7) dated 09.01.2012. It is relevant to mention here that in the arrest memo, the place of arrest of the accused is mentioned as Police Station Chohtan. The witness proved the informations provided by the accused and the recoveries effected in furtherance thereof, in the following manner:
"tSj fgjklr eqyftek ojtw nsoh us eq>s 27 lk{; vf/kfu;e dh lwpuk izn"kZ 17 nh ftl ij , ls ch esjs gLrk{kj o lh ls Mh eqyftek ojtw ds gLrk{kj gSA mDr bfrykuqlkj eqyftek ojtw nsoh us lksus ds yksax tksM+h ,d cjken djk;sa ftldks tCr dj QnZ tCrh izn"kZ ih8 eqrhZc dh ftl ij , ls ch o lh ls Mh ekSrfcjku ds gLrk{kj] b ls ,Q eqyftek ojtw ds gLrk{kj o th ls ,p esjs gLrk{kj gSA QnZ uD"kk utjh cjkenxh LFky yksax izn"kZ ih9 gS ftl ij , ls ch o lh ls Mh ekSrfcjku ds gLrk{kj] bZ ls ,Q eqyftek ojtw ds gLrk{kj o th ls ,p esjs gLrk{kj gSA tSj fgjklr eqyftek ojtw nsoh us eq>s 27 lk{; dh lwpuk izn"kZ ih18 nh ftldh QnZ eqrhZc dh ftl ij , ls ch eqyftek ds gLrk{kj o lh ls Mh esjs gLrk{kj gSA mDr brykuqlkj eqeftek us eksckby uksfd;k cjken djk;k ftldks tCr dj QnZ tCrh eksckby izn"kZ ih15 eqrhZc dh ftl ij , ls ch o lh ls Mh ekSrchjku ds gLrk{kj] bZ ls ,Q eqyftek ojtw ds gLrk{kj o th ls ,p esjs gLrk{kj gSA"
In cross-examination, the witness admitted that the golden ear-studs were recovered from a field which was open and accessible to all and sundry. Neither the golden ear-studs nor the Nokia mobile phone were subjected to identification by any of the family members.
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(17 of 25) [CRLA-1391/2017] From a bare perusal of the evidence of this witness, it is apparent that he did not prove the informations provided by the accused under Section 27 of the Evidence Act in the manner required by law because, the precise words spoken by the accused while divulging the alleged informations, were not stated by the witness when testifying on oath. Furthermore, since the golden ear-studs were not subjected to identification by any family member of the deceased, the recovery thereof becomes insignificant because, it cannot be inferred that the studs were those of the boy. Otherwise also, we are of the opinion that the entire story regarding the accused having taken away the mobile phone and the golden ear-studs of the deceased, appears to be a piece of a concoction, plain and simple. We have strong reasons for coming to this conclusion. It may be stated here that when the Medical Board conducted the postmortem on the dead body of Gogaram, only three small abrasions were seen on the left side of his ear. Suffice it to say that if the golden ear-studs had been snatched by the accused while Gogaram was alive then, he would have definitely resisted the attempt and would certainly have significant injuries on both his ears in the process. As per the evidence of Harku, Kunani and Sita Devi, they could not themselves take out the dead body of the child from the water tank and had to call for assistance of the neighbours. Therefore, it is impossible to believe that the appellant, a young woman of 19 years, would be be in a position to push the boy into the tank and then extract the golden studs from his ears after drowning him. Manifestly thus, the entire case of the prosecution regarding the accused having pushed Gogaram into the tank and then having (Downloaded on 05/05/2021 at 08:18:24 PM) (18 of 25) [CRLA-1391/2017] stolen his golden ear-studs, is nothing but a sheer piece of concoction.
The formulation of this concoction started right from the time of drawing up of the FIR wherein, a fictional story was portrayed that the accused stole the ear studs of the deceased. Likewise, the story that the mobile phone bearing SIM number 7742034032 was taken away by the accused appellant and was subsequently recovered by the I.O. during investigation, is also a piece of fabrication. In the FIR (Ex.P/24), Siddha Ram claimed that his family was having only one mobile phone with SIM number 7742034032 and that Varju took away the said mobile phone while fleeing away after the incident. This allegation as set out in the FIR is falsified from the evidence of Dedaram (PW-6) who stated that he received a call from Sita Devi that Gogaram had been killed by Varju and thereupon, he sent his driver Ramaram to make an enquiry. Thus, apparently Sita Devi had a mobile phone available with which, she called Dedaram. As there is positive evidence that the family of Siddharam owned any one mobile phone, manifestly, call made to Dedaram must undoubtedly have been placed from the mobile number referred to in the FIR (Ex.P/24). That apart, neither the ownership details nor the call details of the mobile number were collected by the I.O. during investigation and thus, the truthfulness of the fictional theory regarding the accused using the phone to call her lovers and she having taken the same away while fleeing and the purported recovery thereof is totally falsified. The prosecution witnesses have also claimed that the mobile phone was of the deceased Gogaram who would not allow the accused to use the same for (Downloaded on 05/05/2021 at 08:18:24 PM) (19 of 25) [CRLA-1391/2017] calling her lower/s. It is absolutely impossible to believe that in a large family from rural background, a 10 years old child would be owning a mobile phone whereas, none of the other family members had such facility.
21. The theory of motive which the prosecution has portrayed against the appellant is based on an imputation that she was indulging in some kind of illicit affair with another man. If at all, the prosecution was desirous of proving this allegation, the call details of the mobile phone held by Gogaram which the accused was allegedly using to call her lover/s, would have provided corroboration regarding this fact. However, as stated above, the I.O. made no effort whatsoever to collect the call details of the mobile phone. Rather, it is quite possible that the call details might have been found detrimental to the prosecution theory and thus, the same were intentionally withheld.
On a perusal of the statement of Ramaram (PW-7), the husband of the appellant herein, it is clear that the witness made conjectural assumptions that Varju was indulging in illicit affair with some other person/s and that she wanted to talk to her lovers by using the mobile phone. Gogaram was not giving her the mobile phone and was rather acting as a hindrance in her efforts and that is why he was eliminated. However, on a perusal of cross-examination conducted from the witness, it is apparent that he admitted that his marriage with Varju was solemnised under the pressure of his uncle Purkha Ram and aunt Nenu Devi. Personally, he was opposed to the marriage. However, after the marriage, his relations with his wife were cordial. No quarrel ever (Downloaded on 05/05/2021 at 08:18:24 PM) (20 of 25) [CRLA-1391/2017] took place between them. From this admission made by Ramaram, the theory that Varju was involved in some kind of affair and that the witness was aware of her infractions, is totally negated because if the husband knew about the illicit affairs of the wife, he could not be expected to state that his relations with her were cordial. Manifestly, if there had been any truth in this allegation, the accused would have been chastised and the issue would have been definitely taken up with her maternal relatives. However, the admission of Shri Ramaram that even though his marriage with Smt. Varju was solemnised against his desire, later on, they developed satisfactory conjugal relations, gives a clear indication against the prosecution theory that the accused was involved in some kind of illicit affairs.
Thus, upon an overall appreciation of the evidence of the prosecution witnesses, no inference can be drawn that the appellant was indulged in any kind of illicit relation or that exposure of such illicit relations was the motive behind killing Gogaram.
22. Now, the evidence of Sita Devi (PW-3), Harku (PW-4) and Kunani (PW-5), the most important three prosecution witnesses one of whom i.e. Harku is said to be an eye-witness of the incident and the other two who reached the spot soon after the incident, needs to be analysed.
23. Sita Devi (PW-3) stated in her evidence that she had gone to the house of Joraram on the day of the incident. When she came back, she met Harku at the dhani and she told the witness that (Downloaded on 05/05/2021 at 08:18:24 PM) (21 of 25) [CRLA-1391/2017] Varju had thrown Gogaram into the water tank. She saw the water tank and lost her senses. Lakharam, Gangaram and Ramaram were called who might have taken out Gogaram from the water tank. Her husband was in Rajkot for the past 20-25 days for labour work and came back after the incident. This witness did not allege that Varju was suspected of being involved in any illicit relationship. It is relevant to mention here that Sita Devi did not state that she called Ramaram on phone and told him of the incident or that she and Kunani went to fetch Ramaram.
24. Kunani (PW-5) stated that she reached home a little while after Harku. Her mother came back at about 06.30 PM. At that time, Harku was present in the house and she told them that Gogaram had been thrown into the water tank by Varju. Thereafter, they went to call Lakharam, Gangaram and Ramaram for help, who came there and took out Gogaram from the water tank.
In cross-examination, the witness admitted that she did not see anything unusual when she reached home from school. She did not tell anything to her mother. Harku came back with the she- camel and she informed them about the unfortunate incident whereafter, she and her mother went to call Lakharam, Gangaram and Ramaram whose dhanis were located at a distance of about half a kilometer away from theirs.
25. Harku (PW-4), the star prosecution witness, stated in her evidence that she came back home from school in the evening of 07.01.2012 and saw that Varju had thrown her brother Gogaram (Downloaded on 05/05/2021 at 08:18:24 PM) (22 of 25) [CRLA-1391/2017] into the water tank. When she came home, Varju and Gogaram were present there. When she entered the courtyard of her house, she heard the cries of Gogaram. She told Varju that Gogaram was crying out upon which, Varju threatened her that she too would be killed if she did not keep quiet and asked her to fetch the she- camel. Kunani also reached home just after her. She returned home with the she-camel at about 6 O' clock in the evening. At that time, her mother and her sister Kunani were looking around for Gogaram. Her mother asked her about Gogaram to which, she replied that Varju had thrown him in the water tank. Her mother called Lakharam, Gangaram and Ramaram who came there and saw Gogaram lying in the water tank. Varju fled away in the meanwhile. The witness stated that on the day of the incident, she and Kunani did not reach home at the same time because Kunani fell behind as she was walking at a slow pace. When Kunani reached home, she was not present there. She did not tell any person of the nearby dhanis regarding Gogaram's fate. We find that the conduct of this witness is absolutely unnatural and untrustworthy. Had there been an iota of truth in the allegation made by the witness that the appellant pushed Gogaram into the water tank in her presence then, her natural reaction would have been to immediately rush to her mother or to the people of nearby dhanis and to apprise them of the incident. From the evidence of Kunani, Harku and Smt. Sita Devi, it is clear that no attempt whatsoever was made by these witnesses to check the condition of Gogaram by looking into the water tank. If at all, Harku had seen the appellant pushing Gogaram into the water tank, then she, Kunani and Sita Devi would have definitely made attempts to (Downloaded on 05/05/2021 at 08:18:24 PM) (23 of 25) [CRLA-1391/2017] pull the boy out of the water tank immediately. They could not have been sure that the boy had passed away and the natural human reaction would have been to try and pull him out of the tank. There exist stark contradictions in the evidence of Sita Devi (PW-3) and the two girls (PW-4 and PW-5) on this aspect. If at all, the witness Harku (PW-4) had seen her younger brother Gogaram being dunked into the water tank by the appellant, she would not have casually gone away to search for the she-camel merely at the behest of the accused and would rather be expected to raise a hue and cry and to try and gather the neighbours. If at all, it is perceived that she was hesitant in approaching the people from the nearby dhanis, she would have definitely rushed to her sister Kunani, her brother Ramaram or her mother Sita Devi so that efforts could be made to save Gogaram. However, it is apparent from the evidence of Harku (PW-4) that she readily accepted the suggestion given by the accused and casually went to look out for the she-camel to a place which was about a kilometer away from her Dhani. The conduct of the witness in not trying to alarm the neighbours and in failing to approach her family members to tell them of the incident so that efforts could be made to save the boy, brings her testimony under a cloud of doubt.
26. As per the site inspection plan (Ex.P/6), the opening of the water tank was 1.5 X 1.5 feet. As per the evidence of the material prosecution witnesses, Gogaram was a boy aged about 12 years and the accused appellant was 19 years of age at the time of the incident and thus, it would have been physically impossible for the appellant to have single-handedly lifted and dunked the boy into (Downloaded on 05/05/2021 at 08:18:24 PM) (24 of 25) [CRLA-1391/2017] the water tank through such a small opening. As per Harku, the appellant was bare-handed when she pushed Gogaram into the water tank. If there was any truth in this allegation then, if the boy was being forcibly pushed into the water tank, he would have definitely resisted by flailing his arms and legs and in this process, he would have received scratches/ abrasions all over the body. However, other than the two abrasions, one on the sole of the right foot and the other on the left ear, no other marks of violence were observed by the Medical Board when the postmortem was conducted on the boy's dead body.
27. In this background, we are of the firm opinion that the case set up by the prosecution that the appellant dunked the victim Gogaram into the water tank and thereby murdered him because she was not given the mobile phone to talk to her paramour/lover, is absolutely unworthy of credence. The evidence of the star prosecution witness Harku (PW-4) is totally unreliable. The allegations set out in the FIR lodged on the basis of her information, are cooked up and concocted. The assertion of the prosecution witnesses that the accused appellant absconded after the incident, is also unacceptable for the reason that she was arrested on 09.01.2012 i.e. on the very next day of the incident. The recoveries shown to have been effected at her instance are totally concocted. The investigation conducted by the police officials is tainted and unworthy of reliance.
28. In wake of the discussion made herein above, we are of the firm view that the prosecution has failed to lead convincing and (Downloaded on 05/05/2021 at 08:18:24 PM) (25 of 25) [CRLA-1391/2017] reliable evidence so as to bring home the guilt of the accused. The appreciation of evidence undertaken by the trial court and the conclusions drawn in the impugned Judgment for convicting the appellant herein, are not based on an apropos appreciation of evidence available on record. Hence, the impugned Judgment cannot be sustained.
29. As an upshot of the above discussion, the appeal deserves to be accepted. The impugned Judgment dated 09.08.2017 passed by the learned Additional Sessions Judge, No.2, Barmer in Sessions Case No.21/2016 (02/2013) is hereby quashed and set aside. The appellant Varju Devi is acquitted of all the charges. She is in custody. She shall be released from prison forthwith if not wanted in any other case.
The appeal is allowed accordingly.
30. 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.15,000/- and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the appellant shall appear before the Supreme Court.
31. Record be returned to the trial court forthwith.
(DEVENDRA KACHHAWAHA),J (SANDEEP MEHTA),J
Tikam Daiya/-
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