Rajasthan High Court - Jaipur
Hemendra Kumar Sharma @ Monu vs State Of Rajasthan Through Pp on 5 September, 2018
Author: Pankaj Bhandari
Bench: Pankaj Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Appeal No. 611/2018
Hemendra Kumar Sharma @ Monu S/o Shri Mahendra Kumar
Sharma B/c Brahamin, R/o Near Shiv Mandir, Railway Colony,
Police Station Kotwali, Sawaimadhopur. At Present In Distt. Jail,
Sawaimadhopur.
----Appellant
Versus
State Of Rajasthan Through P.p.
----Respondent
For Appellant(s) : Mr. Harendra Singh with Mr. Jaswant
Singh Rathore
For State : Mr. Sudesh Saini, PP
HON'BLE MR. JUSTICE PANKAJ BHANDARI
Judgment / Order
05/09/2018
1. Admit.
2. With the consent of the parties, the case is taken up for
hearing for final disposal.
3. Appellant has preferred this appeal aggrieved by judgment
and order dated 13.03.2018 passed by Additional Sessions Judge,
Sawai Madhopur in Sessions Case No.45/2014 (59/2014),
whereby trial Court has convicted the appellant for offence under
Section 306 IPC and has sentenced him to undergo rigorous
imprisonment for five years and has also imposed fine of
Rs.2,000/-, on non payment of fine to further undergo one month
simple imprisonment.
4. In brief, the facts of the case are that on 16.08.2013,
deceased committed suicide, an inquest report was lodged on the
(2 of 6) [CRLAS-611/2018]
same day with regard to suicide. After eight days i.e. on
24.08.2013, complaint Ex.P-2 was lodged which was sent to the
police for registration of F.I.R. Consequently, F.I.R. Ex.P-14, was
registered. After due investigation police submitted charge-sheet
under Section 306 IPC against the appellant. Court after hearing
the charge-arguments, charged the appellant for offence under
Section 306 IPC. Appellant denied the charges and sought trial.
5. As many as fifteen witnesses were examined on behalf of the
prosecution and fourteen documents were exhibited. Appellant
was examined under Section 313 Cr.P.C. After hearing the final
arguments, appellant has been convicted for the offence under
Section 306 IPC and sentenced as herein above mentioned,
aggrieved by which the present appeal has been preferred.
6. It is contended by counsel for the appellant that the
prosecution has utterly failed to bring home the crime against the
appellant. Postmortem report was not exhibited to prove the
factum of demise of the deceased. No record was produced to
establish that the messages as mentioned in transcript Ex.P-9
were sent from the mobile of the appellant. It is also contended
that Court below has not considered the statement of independent
witness PW-7 Hamidan Bano who in her cross-examination had
admitted that the deceased was having dispute with her mother
and brothers as they were showing her boys against her wish. She
has mentioned that this dispute was going on for a pretty long
time.
7. It is also contended that there is no suicide note to connect
the appellant with the crime. It is not established that the
deceased committed suicide because appellant talked to some
other girl. It is argued that baseless allegation has been levelled
(3 of 6) [CRLAS-611/2018]
which are not supported by any documentary evidence or other
proof to establish the crime.
8. It is further contended that there is no allegation levelled
against the appellant in the inquest report and complaint has been
lodged after an inordinate delay of eight days.
9. It is also contended that from the statement of PW-6-Vimla
Kanwar, mother of the deceased, it is evident that the deceased
refused to marry the boys who were shown to her as she wanted
to marry the boy of her choice. It is argued that mother has also
deposed that brothers of deceased were objecting to her marrying
in a different community.
10. Learned Public Prosecutor has opposed the appeal.
11. I have considered the contentions.
12. From the evidence adduced on behalf of the prosecution, it is
clear that appellant was having relations with the deceased,
however the fact that some dispute took place between the
deceased and the appellant is not established as the prosecution
has utterly failed to prove that the transcript Ex.P-9 and the
messages mentioned therein were sent by the appellant to the
deceased from his mobile.
13. Prosecution has further failed to prove the factum of death
as the postmortem report is not exhibited and appellant had no
opportunity to examine the doctor with regard to cause of death of
the deceased.
14. Yet another piece of evidence which the Court below has
utterly failed to take note of is statement of PW-7-Hamidan Bano
who has in clear term deposed that the deceased was having
dispute with her mother and brothers as she was not willing to
marry the boy of choice of her family members. She has also
(4 of 6) [CRLAS-611/2018]
mentioned that the dispute was continuing for a pretty long time.
The fact that brothers of deceased were not willing to marry her in
another community is also admitted by PW-6-Vimla Kanwar,
mother of the deceased.
15. PW-5- Bhagat Singh, brother of the deceased who was
present at the time when her sister committed suicide has
mentioned that before police came on the spot, he had lowered
his sister and had opened the knot. He has also mentioned that at
around 3:00 pm on the same day, a friend of the deceased named
Pooja came to meet her, prosecution has even not cared to
interrogate Pooja with regard to her visit to the house of deceased
and what was communicated to her by the deceased soon before
her death. PW-5 has denied portion A to B of Ex.D-2 in the
statement recorded under Section 161 Cr.P.C. In the portion A to B
of Ex.D-2, PW-5 Bhagat Singh has stated that after opening the
knot, he alongwith Deepak carried Kiran to the chawk where he
checked Kiran and Kiran was breathing. In Court statement he has
denied giving such statement. Police has even not cared to
interrogate Deepak or make him a witness when he was present
at the place of incident.
16. Investigation done in this case is under serious shadow of
doubt and the case might have been a case of honour killing, as
brothers and mother of the deceased did not want to marry the
deceased in another community and the deceased was not willing
to marry any boy of her community.
17. The delay in lodging of the complaint is also not explained by
the family members of the deceased. PW-4 Kanta who is sister of
deceased in her examination in chief has stated that deceased was
in love with appellant. She has also mentioned that deceased used
(5 of 6) [CRLAS-611/2018]
to tell everything to Hamidan Bano who was their neighbour. In
her cross-examination she has stated that deceased was aged
twenty nine years and she was having love affair with the
appellant. She has denied given statement mark A to B in Ex.D-1,
wherein it was mentioned that deceased had shown the appellant
to her mother andbrother. She has also admitted in her chief that
appellant was known to the deceased for last three years and they
had developed relationship of husband and wife.
18. Fact that deceased was having love affair with the appellant
was thus known to the family members of the deceased and still
they were pressing upon her to marry a boy of their community
goes to show that undue pressure was put on the girl and the
probable reason of her suicide might be something else.
19. In view of the above, judgment and order passed by the
Court below cannot be sustained.
20. The appeal is, accordingly, allowed. Judgment and order
passed by the Court below is quashed and set aside. Application
for suspension of sentence stands disposed.
21. Appellant is directed to furnish personal bond in the sum of
Rs.20,000/- and a surety bond in the like amount in accordance
with Section 437-A of Cr.P.C. before the Deputy Registrar (Judicial)
within two weeks from the date of release to the effect that in the
event of filing of Special Leave Petition against this judgment or
on grant of leave, the appellant on receipt of notice thereof, shall
appear before the Hon'ble Apex Court. The bail bond will be
effective for a period of six months.
22. However, looking to the shady investigation done by the
police and the fact that this might have been a case of honour
killing, I deem it proper to direct the DG (Crimes) to inquire into
(6 of 6) [CRLAS-611/2018]
the incident and the role of the Investigation Officer, and to take
appropriate action, as per law.
23. Copy of this order be also provided to learned Public
Prosecutor.
(PANKAJ BHANDARI),J Arti/12 Powered by TCPDF (www.tcpdf.org)