Rajasthan High Court - Jodhpur
Dayaram vs State on 18 February, 2021
Bench: Sandeep Mehta, Devendra Kachhawaha
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
..
D.B. Criminal Appeal No. 172/2018.
Dayaram S/o Ganeshram, Aged About 35 Years, Lodged In
Central Jail, Udaipur. ----Appellant
Versus
State of Rajasthan through PP ----Respondent
Connected With
D.B. Criminal Appeal (DB) No. 230/2019.
Daya Ram S/o Ganesha Ram Kharol, Aged About 39 Years, R/o
Kuni P.S. Hatuniya, Dist. Pratapgarh.
(At Present Lodged In Dist. Jail, Pratapgarh). ----Appellant
Versus
State of Rajasthan through PP ----Respondent
For Appellant(s) : Mr. Anil Upadhyay, Amicus Curiae
through audio call.
Mr. Pankaj Kumar Gupta.
For Respondent(s) : Mr. Anil Joshi, PP.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA
JUDGMENT
Date of Reserve :: 13/01/2021
Date of Pronouncement :: 18/02/2021
BY THE COURT: (PER HON'BLE KACHHAWAHA, J.)
Both these criminal appeals have been filed on behalf of the accused-appellant Dayaram for assailing the Judgment dated 08.07.2015 and are thus being decided together by a common Judgment.
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(2 of 21) [CRLAD-172/2018] Initially, Criminal Appeal No. 172/2018 was forwarded by the accused-appellant from the Central Jail, Udaipur and was barred by 1071 days.
Vide order dated 29.09.2018, this Court appointed Mr. Anil Upadhyay, Advocate as Amicus Curiae to plead the appeal on behalf of the accused-appellant and assist the Court. Thereafter, vide order dated 13.11.2018, the delay of 1071 days condoned and the appeal was admitted for hearing and the record was called for. Vide order dated 19.02.2020, the application for Suspension of Sentences filed on behalf of the accused-appellant was rejected.
Another time barred appeal being, Criminal Appeal No. 230/2019 has been filed on behalf of the appellant by the learned counsel Mr. Pankaj Kumar Gupta under the provisions of Section 174(2) [Sic.374(2)] Cr.P.C. challenging the judgment of conviction dated 08.07.2015 passed by the Special Judge, SC/ST Cases, Pratapgarh in Sessions Case No. 70/2013, whereby the appellant was convicted and sentenced as under:-
S.No. Offence Under Section Sentences Fine Sentence in default of fine
1. 302 IPC Life Rs.5,000/- 6 Months' additional Imprisonment simple imprisonment Vide order dated 18.11.2019, this Court has condoned the delay of 1440 days in filing the Criminal Appeal No.230/2019 and the learned counsel Mr. Gupta appearing for the accused-
appellant, was granted four weeks' time to remove the defects. Record was also summoned from the trial court. Thereafter, vide order dated 07.02.2020, this appeal was also admitted for hearing.
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(3 of 21) [CRLAD-172/2018] As per the office report dated 08.04.2020, record of trial court was received and tagged with the present appeals.
Brief facts of the case leading to these appeals are that, on 12.05.2012, Bheru Lal Kharol (PW-1), brother-in-law of the accused-appellant, lodged a written report (Ex.P/1) at Police Station Hathuniya, District Pratapgarh alleging that Rahul PW-3, the son of the accused-appellant came to his house and told that his father, Dayaram had murdered his grandmother, Smt. Gulab Bai. It was also mentioned in the report that the accused- appellant Dayaram had quarreled with Smt. Gulab Bai with regard to a property dispute.
On this report, Police registered a First Information Report (FIR) No. 56/2012 (Ex.P/10) against the accused-appellant for the offence under Section 302 IPC. The accused-appellant was arrested on 13.05.2012 at about 1.15 p.m. vide arrest memo (Ex.P/12) Upon completion of the investigation, a charge sheet came to be filed against the appellant for the offence under Section 302 IPC. As the offence was triable by Court of Sessions, the case was committed to the Court of Sessions Judge, Pratapgarh from where, it was transferred to the Additional Sessions Judge, Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Pratapgarh for trial, where charge was framed against the accused-appellant Dayaram under Section 302 IPC and the same was narrated & explained to the accused-appellant who pleaded not guilty and claimed trial.
The prosecution examined of 14 witnesses namely, Bheru Lal Kharol (PW-1), Jagdish (PW-2), Rahul (PW-3), Smt. Jasoda (PW-
4), Badrilal Kumawat (PW-5), Tejsingh (PW-6), Madanlal (PW-7), (Downloaded on 18/02/2021 at 09:07:28 PM) (4 of 21) [CRLAD-172/2018] Babulal (PW-8), Bagdiram (PW-9), Guddibai (PW-10), Kaniram (PW-11), Dr. O.P. Dayama (PW-12), Bhanwarsingh (PW-13) and Kamlashanker (PW-14).
In support of its case, the prosecution has exhibited 22 documents which are described as follows: Written Report (Ex.P/1), Memo of Panchayatnama of dead body (Ex.P/2), Memo of supurdgi of dead body (Ex.P/3), Memo of Site (Ex.P/4), Memo of recovery of rope (Ex.P/5), Police Statement of Badrilal (Ex.P/6), Police Statement of Babulal (Ex.P/7), Postmortem Report (Ex.P/8), Carbon copy of the documents issued to the Medical Jurist for postmortem of the deceased (Ex.P/9), First Information Report (Ex.P/10), Copy of Malkhana Register (Ex.P/11), Memo of Arrest of accused Dayaram (Ex.P/12), Photographs of the deceased (Ex. P/13 to Ex.P/22).
In support of its case, the defence has exhibited five documents which are:- Police Statement of Bherulal (Ex.D/01), Statement under Section 164 Cr.P.C. of Rahul (Ex.D/02), Police Statement of Jashoda Bai (Ex.D/03), Police Statement of Bagdiram (Ex.D/04) and Police Statement of Kaniram (Ex.D/05).
After appreciating the arguments advanced by the learned counsels for the parties and considering the evidence on record, the learned Trial Court passed the following order on 08.07.2015:-
"39. ifj.kker% vfHk;qDr n;kjke iq= Jh x.ks"kjke [kkjksy mez&35 o'kZ] fuoklh dq.kh Fkkuk gFkqfu;k ftyk izrkix<-] jkt0 dks /kkjk 302 Hkk0n0la0 ds v/khu n.Muh; vijk/k ds vkjksi dk nks'kh ikrs gq, nks'kfl) ?kksf'kr fd;k tkrk gS A^^ After appreciation of the arguments advanced by the learned counsel for the parties and considering the evidence on record, on (Downloaded on 18/02/2021 at 09:07:28 PM) (5 of 21) [CRLAD-172/2018] the very same day, i.e., 08.07.2015, the learned Trial Court passed the following order on the aspect of sentence:-
"43. Qyr% vfHk;qDr n;kjke iq= Jh x.ks"kjke [kkjksy mez&35 o'kZ] fuoklh dq.kh Fkkuk gFkqfu;k ftyk izrkix<-] jkt0 dks /kkjk 302 Hkk0n0la0 ds v/khu n.Muh; vijk/k dh nks'kfl)h ckcr vkthou dkjkokl o ikap gtkj :i;s vFkZn.M ls nf.Mr fd;k tkrk gSA vne vnk;xh vFkZn.M dh lwjr esa vfHk;qDr dks 06 ekg dk lk/kkj.k dkjkokl vyx ls Hkqxruk gksxkA vfHk;qDr }kjk izdj.k ds vuqla/kku o vUoh{kk ds nkSjku vfHkj{kk esa jgdj chrk;h x;h vof/k fu;ekuqlkj mDr ewy ltk esa lek;ksftr dh tkosxh A mDrkuqlkj vfHk;qDr dk ltk okjaV eqfrZc gksA udy fu.kZ; vfHk;qDr dks fu"kqYd iznku dh tkosA izdj.k esa tCr jLlh ckn xqtjus e;kn vihy fu;ekuqlkj u'V dj nh tkosA vihy gksus dh lwjr esa ekuuh; vihy U;k;ky; ds funsZ"kkuqlkj fuLrkj.k fd;k tkosA^^ Being aggrieved of the impugned judgment and order dated 08.07.2015 passed by the learned Trial Judge, convicting the accused-appellant for the offence under Section 302 IPC and sentencing him to imprisonment for life, he filed both these appeals before this Court.
Learned counsel Mr. Pankaj Gupta, appearing on behalf of the accused-appellant, submits that the evidence of the material witnesses is contradictory to each other; that the learned Trial Court has failed to consider the evidence in its right perspective; that the prosecution has failed to establish the case beyond reasonable doubt; that the accused-appellant has falsely been implicated in this case; that there was no motive for the accused- appellant to murder his mother but despite that, the learned Trial Court has convicted and sentenced the accused-appellant with life (Downloaded on 18/02/2021 at 09:07:28 PM) (6 of 21) [CRLAD-172/2018] imprisonment and that too, without any evidence on record to connect the accused-appellant with the alleged crime. Learned counsel has submitted that there is no evidence available on record regarding the alleged dispute of the accused-appellant with his mother in relation to the house in question. Learned counsel also submitted that PW-1 Bherulal, on whose behest, the FIR was registered, has a criminal record and he is also interested in the house in question. Therefore, while questioning the credibility of this witness, learned counsel submitted that the report was lodged by mentioning wrong facts.
Learned Amicus Curiae Mr. Anil Upadhyay adopted the arguments made on behalf of the accused-appellant by Shri Pankaj Gupta. Both the learned counsels prayed that these appeals may be allowed and the accused-appellant acquitted of the charge for offence punishable under Section 302 of the Indian Penal Code by setting aside and quashing the impugned judgment and order dated 08.07.2015.
Per contra, learned Public Prosecutor has opposed the arguments advanced by Amicus Curiae as well as the learned counsel Shri Gupta and submitted that the learned Trial Court passed a very well reasoned judgment while convicting and sentencing the accused-appellant with life imprisonment after thoroughly appreciating the entire evidence available on record and, therefore, no interference is called for in the Appellate Jurisdiction of this Court. He prayed for dismissal of the appeals.
We have heard learned counsel for the parties and scanned through the record thoroughly.
For disposal of these appeals, we consider it appropriate to deal with the evidence first.
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(7 of 21) [CRLAD-172/2018] PW-3 Rahul is the son of the accused-appellant (child witness). During the course of examination-in-chief, he stated that his father and his grandmother were living in a house at Kuni; that his father often quarreled with his grandmother; that on the fateful morning, his father quarreled with his grandmother; that he and his grandmother ate daal-bati; that thereafter, his grandmother had given him one rupee and he went to the bus- stand to buy ice-candy pepsi; that his father was a labourer and had left for work and returned home in the evening; that his father had taken bath; that when his father was taking bath, he went to play along with other boys; that when he returned home, he saw that his father had strangled the neck of his grandmother on the floor of the room; that his father hanged his grandmother with the help of a rope to the barevan; that thereafter, his father gave him a rupee and told him to bring ice candy pepsi, he went to the bus-stand to buy the same; that thereafter, he went to the house of his Phuphaji (Uncle) & Bhuaji (Aunty); that the name of his Bhuaji (Aunty) is Jasoda Bai and name of his Phuphaji (Uncle) is Bherulal; that he told them about strangulation of his grandmother by his father and hanging of the body at barevan; that his grandmother died due to strangulation and hanging; when his father had strangled the neck of his grandmother, he saw the incident while standing outside the room; that thereafter, police came and prepared documents; that police took away the piece of rope after preparing a document; On the memo of recovery of rope, his signatures were marked as E to F; that the accused, in the instant case, is his father, whose name is Dayaram. He proved the site inspection memo (Ex.P/4) prepared by the police and recovery memo of rope (Ex.P/5); he stated that E to F are his (Downloaded on 18/02/2021 at 09:07:28 PM) (8 of 21) [CRLAD-172/2018] signatures on these documents and identified the accused- appellant before the Court.
During the course of cross-examination, the witness PW-3 Rahul denied the suggestions put forth by the learned defence counsel and stated therein that, it was wrong to say that his grandmother had quarreled with his father; on the contrary, his father had quarreled with his grandmother; that his grandmother had given him money and after buying pepsi, he had come to his house; that when he came to house, his grandmother was lying on the ground; that he was standing in the veranda (parsaal), from where, he saw the whole incident; that the door between veranda (parsaal) and the room was wide open; that his grandmother had died when she was lying on the floor and thereafter, she was hanged with the rope. Further, PW-3 Rahul, stated that it was wrong to say that his Phuphaji tutored him to give the statement, narrated before the Court; that he had given the statement with his own wisdom and was not acting under anyone's influence; it was wrong to say that his father and his grandmother were living happily and his grandmother had committed suicide in a fit of anger; it was wrong to say that he had given a false statement to implicate his father; that his father had kept him happily.
PW-4, Jasoda is the real sister of the accused-appellant and wife of the informant Bherulal. During the course of examination- in-chief, she stated that the son of Dayaram, Rahul came to her house; he was alarmed and panicked; upon enquiry, Rahul told her that his father had killed bai (grandmother) and hanged up her body; he narrated the same version to her husband; that thereafter, they went to her mother's house and saw that she was (Downloaded on 18/02/2021 at 09:07:28 PM) (9 of 21) [CRLAD-172/2018] hanged up with the help of a rope; that her mother often came to her house and told her that Dayaram, accused-appellant used to beat her mother and used abusive words, and said, that if she did not give him the kadiyas, he would sell the house or would kill her.
During the course of cross-examination, suggestions put forth by the learned defence counsel were denied by PW-4 Jasoda. She stated that it was wrong to say that her mother was suffering from old age and other problems and being perturbed thereby, she had committed suicide by hanging herself; she stated that the hands of her mother used to shake and she was not able to walk properly; it was wrong to say that her mother had committed suicide by stepping up on tin box and hanged herself by kicking aside the tin box; when she, her husband and Rahul went to the house of her mother, Dayaram was present there; upon enquiring from him that as to why, he had beaten the mother and killed her by hanging her body, Dayaram kept silent.
PW-1 Bherulal is the son-in-law of the deceased Gulab Bai and during the course of examination-in-chief, he stated that the incident took place on 12.05.2012 Saturday; that Rahul came crying to his house at about 8:00 PM and told that his father had killed his mother-in-law Gulab Bai and had hanged her; he apprised that his father had killed his grandmother by choking her neck; that on the very same day, in the morning, Rahul told him and his wife that his father had abused his grandmother; that Rahul told that his father had killed and hanged Gulab Bai and thereafter, he and his wife Jasoda, Jagdish, Badrilal, Babulal, Madanlal, all reached the house of Gulab Bai and saw her lifeless body hanging from the barevan; that at that time, his brother-in- law Dayaram was present there; that on enquiring from him about (Downloaded on 18/02/2021 at 09:07:28 PM) (10 of 21) [CRLAD-172/2018] the incident, he kept silent; that his mother-in-law had given the documents of the house to her elder son Bagdiram.
PW-2 Jagdish is one of the neighbours of the accused- appellant Dayaram and during the examination-in-chief, he stated that there was constant friction between Dayaram and his mother Gulab Bai who told him that her son had physically abused and threatened her. Gulab Bai was 65 years old when she died. Around the time, she died, the deceased was already too feeble to even carry water by herself and asked him for water on various occasions. On the day of the incident, the witness returned home and came to know that Gulab Bai was no more. He immediately went to the place of incident and saw deceased's body hanging. Rahul also told him that his father killed his grandmother.
During the course of cross-examination, witness PW-2 Jagdish stated that on hearing a scream, he reached the spot where Bherulal and Jasoda were already present before; He also accepted that he had not witnessed the incident but had seen the dead body hanging.
PW-5 Badrilal lives a house away from the accused- appellant. During his examination-in-chief, he stated that Bherulal told him that his mother-in-law's dead body was left hanging. When he reached the place of incident, with Bherulal, he saw that Dayaram's mother's body was hanging by the rope in the house.
PW-6 Tejsingh, is one of the neighbours of the accused- appellant Dayaram. During examination-in-chief, he stated that Gulab Bai was strangled and then hanged. A tin box was lying underneath the dead body, while the legs of the deceased were touching the floor. He also stated that people informed him that Dayaram had hanged and killed his mother.
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(11 of 21) [CRLAD-172/2018] During cross-examination of PW-6 Tejsingh, it was revealed that at the place of incident, the witness saw that the knees of Gulab Bai were touching the floor and a box of tin was lying beside the dead body; He also stated that the report Ex.P/1 was written in his handwriting as per what was told to him by Bherulal; PW-6 did not get a chance to talk to Rahul.
PW-7 Madanlal was also one of the neighbours of the accused-appellant and during the examination-in-chief, he stated that they had reached near the house of Kishan when he saw that Jasoda Bai, her husband Bherulal along with Dayaram's son. He saw Jasoda Bai weeping and she told them that Dayaram had killed their mother.
PW-8 Babulal was one of the neighbours of the accused- appellant and during the examination-in-chief, he stated that Rahul came outside his house and shouted that his father had killed his grandmother. He admitted that he did not know how Gulab Bai had died.
During the course of cross-examination, the witness PW-8 Babulal, stated that it was totally wrong to suggest that Gulab Bai had committed suicide after coming back from the village Sandiya because of certain problems she faced there.
PW-10 Guddibai, is the real sister of the accused-appellant Dayaram and during her examination-in-chief, she stated Dayaram used to quarrel time and again with her mother with regard to sale of the house.
During cross-examination of PW-10, she made a conjecture that Dayaram had killed her mother as he often threatened that he would kill her.
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(12 of 21) [CRLAD-172/2018] PW-11 Kaniram, is the brother-in-law of the accused- appellant Dayaram and husband of PW-10 Guddi Bai. During the examination-in-chief, he stated that Dayaram used to beat his mother regarding sale of the house; Rahul informed him that Dayaram had killed his mother-in-law.
During the course of cross-examination, the witness PW-11 Kaniram, stated that Dayaram was also known as Devraj; that his statement had not been recorded by the police; that there was no quarrel between Bherulal and Dayaram.
PW-12 Dr. O.P. Dayama was posted as Medical Jurist at District Hospital, Pratapgarh, on the date of incident; he conducted postmortem upon the body of Gulab Bai and issued the Postmortem Report (Ex.P/3); he opined that the death had taken place before 12 to 24 hours before it was brought to the hospital for postmortem; he also opined that the cause of death of Smt. Gulab Bai was strangulation of neck thereby causing asphyxia.
During the course of cross-examination, he stated that nails of the deceased had turned blue due to lack of oxygen in the body. While examining the lungs, froth was found in them which could be the result of consumption of liquid or poisonous thing.
PW-9 Bagdiram, is the real brother of the accused-appellant Dayaram. During the course of examination-in-chief, he stated that his mother had shared with him that Dayaram repeatedly demanded the registry of house. She feared that Dayaram would mortgage the house or sell the same and thus, she had given the registry to the witness which was still lying with him.
During the course of cross-examination, this witness PW-9 Bagdiram stated that Dayaram could not kill their mother; that no son would kill his mother. Dayaram was in a habit of consuming (Downloaded on 18/02/2021 at 09:07:28 PM) (13 of 21) [CRLAD-172/2018] liquor for last 20 years, if he wanted to kill his mother, he could have done so years ago. He believed that a false report had been lodged against Dayaram. He was unaware as to the cause of death of Gulab Bai and how she died.
Although the story of the prosecution was not completely supported by this witness but admittedly, this witness resided in another village, namely, Sandiya, Tehsil Mansa, District Neemuch, Madhya Pradesh and came to the village Kuni, upon information regarding death of his mother, after receiving a phone call. Further, his evidence imputes strong motive to the appellant for the murder of Smt. Gulab Bai.
PW-13 Bhanwar Singh was the SHO at Police Station Hathuniya and during the course of cross-examination he denied that he had influenced Rahul to give statement against Dayaram; that it was right that as per the First Information Report, the dispute regarding house between Bherulal and Dayaram had come on record; that it was right that where the body of Gulab Bai was hanged, a tin box was lying underneath and near the body but he did not seize the same. He refuted the suggestion that the deceased Gulab Bai had committed suicide by placing the rope in her neck.
PW-14 Kamlashanker was the photographer, who snapped the relevant photographs on the instructions of police officials and handed over the coloured prints to the concerned SHO.
We have given our thoughtful consideration to the submissions advanced at bar and have minutely gone through the impugned Judgment and thoroughly re-appreciated the evidence available on record.
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(14 of 21) [CRLAD-172/2018] On going through the evidence of PW-3 Rahul, the grandson of the deceased Gulab Bai and the son of the present accused- appellant Dayaram, it was revealed that the appellant squabbled with the deceased Gulab Bai; even on the fateful morning, the accused-appellant had hot talks with the deceased Gulab Bai; the child clearly and unequivocally stated that his father (i.e., the appellant) had pressed the neck of his grandmother (deceased Gulab Bai) after forcing her down and thereafter, the accused- appellant hanged the body of his mother with barevan. The relevant portion of the statement given by PW-3 Rahul is reproduced hereunder for ready reference:-
"esjs ikik esjh nknh ls >xMk djrs Fks ! esjs ikik us esjh nknh ls lqcg >xMk fd;k FkkA --------------- esjs ikik esjh nknh dks tehu ij ysVkdj xyk nck jgs Fks] tks dejs es gh dj jgs Fks ! fQj ikik us esjh nknh dks jLlh ls cka/k dj cjsou ls yVdk;k ! ------------ esjs ikik us tc esjh nknh dk xyk nck;k rc eSa dejs ds ckgj ijlky esa [kMk gksdj ;g lc ns[k jgk Fkk A^^ Even during the course of cross-examination, this witness PW-3 Rahul emphatically denied the suggestion of tutoring given on behalf of the accused-appellant and stated that, ";g dguk xyr gS fd esjs QksQkth us eq>s ;g crk;k gks fd tSlk eSa dgWw oSlk U;k;ky; esa c;ku nsukA c;ku eSa viuh ethZ ls ns jgk gWsw] fdlh ds cgdkos esa vkdj ughs ns jgk gWwaA ;g dguk xyr gS fd esjs ikik esjh nknh ls vPNs jgrs gks vkSj esjh nknh us xqLls esa vkdj vkRegR;k dj yh gksA^^ Therefore, in view of the above statement, it cannot be said that this witness PW-3 Rahul had any conflict with the accused- (Downloaded on 18/02/2021 at 09:07:28 PM)
(15 of 21) [CRLAD-172/2018] appellant and has given false statement against him or that he was tutored to give evidence against the appellant.
As per above statements, PW-3 Rahul is a star witness of this case and he has fully supported the story of the prosecution. His statement, in regard to the altercations between deceased and accused-appellant, was supported by PW-2 Jagdish (neighbour of the deceased), PW-4 Jasoda (the daughter of the deceased & real sister of the accused-appellant), PW-1 Bherulal (son-in-law of the deceased) and PW-11 Kaniram (another son-in-law of the deceased Gulab Bai).
The Trial Court has accepted the PW-3 to be a reliable witness. Conviction can be based on the solitary evidence of a child witness if it is otherwise reliable and inspires confidence.
In Nivrutti Pandurang Kokate & Ors. Vs. State of Maharashtra, reported in (2008) 12 SCC 565, it has been observed that the Section 118 of the Evidence Act envisages that all persons shall be competent to testify unless the Court thinks otherwise. In summing up the various judgments on this issue, this is what the Hon'ble Apex Court had to say:-
"The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses (Downloaded on 18/02/2021 at 09:07:28 PM) (16 of 21) [CRLAD-172/2018] are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth it it, there is no obstacle in the way of accepting the evidence of a child witness."
Similarly, while evaluating the evidence of an interested or related witnesses, in the case of Dinesh Kumar Vs. State of Rajasthan, reported in (2009) 8 SCC 270, Hon'ble The Supreme Court has held as under:-
"When the eyewitnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically. The court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. But if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same. Conviction can be made on the basis of such evidence."
We also cannot lose sight of the fact that the child witness was not deposing against another family member or a stranger but his own father. It would call for courage and conviction to name his own father, as the child was grown up enough to understand the consequences of naming his father for the murder.
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(17 of 21) [CRLAD-172/2018] In an overall view of the matter, we are of the opinion that the testimony of PW-3 Rahul is unimpeachable and is fully corroborated by the statements of PW-1 Bherulal, PW-2 Jagdish, PW-4 Jasoda, PW-6 Tejsingh, PW-10 Guddi Bai and PW-11 Kaniram.
After considering the evidence available on record to be specific that of PW-3 Rahul, PW-4 Jasoda, PW-1 Bherulal and PW- 11 Kaniram in regard to the weak disposition of deceased, particularly that her hands used to shake, we are of the opinion that the defence taken by the accused-appellant, that the deceased herself hanged, was rightly discarded by the learned Trial Court.
So far as this defence is concerned that the deceased herself hanged, on going through the record, we find that PW-6 Tejsingh had categorically stated that legs/knees of the deceased Gulab Bai were touching the floor. These statements are corroborated by photographs Ex.13 to Ex.15, Ex.17 and Ex.20. In these circumstances, this plea cannot be accepted that the deceased had committed suicide.
Even PW-6 Tejsingh stated that the deceased was very old and was not able to walk properly. PW-6 Tejsingh, PW-8 Babu Lal, PW-9 Bagdiram and PW-10 Guddi Bai, stated that relations between the accused-appellant and deceased were not good and the accused-appellant oftenly argued with the deceased Gulab Bai because he wanted either to sell or mortgage the house.
So far as medical evidence is concerned, we find that the same corroborates the case of the prosecution to the hilt. PW-12 Dr. O.P. Dayama, who was posted as Medical Jurist opined that, "esjh jk; esa e`R;q dk dkj.k xyk nckus ls ne ?kqVus ls e`R;q gqbZ gSA "ko ijh{k.k fjiksVZ (Downloaded on 18/02/2021 at 09:07:28 PM) (18 of 21) [CRLAD-172/2018] izn"kZ ih08 gS ftl ij , ls ch esjs gLrk{kj gSsA^^ This witness PW-12 Dr. O.P. Dayama has also proved the postmortem of the deceased (Ex.P/8) and also proved that five injuries were found on the body of the deceased which are described as:- "fuEu [kjksps Fkh %& xnZu ij o mlds vklikl] 0-5x0-5 lseh] nkfguh fDyosdy vfLFk ds Hkhrjh Hkkx ijA pksV ua0 nks %& 1 x0-2 lseh] ck;h esafMiy vfLFk ds ihNs] BksMh ij lkeus dh rjQA pksV ua0 rhu %& 1 x0-2 lseh] 4x 0-5 lseh] ck;h esafMiy ds uhpsA pksV ua0 pkj %& 6 x1 lseh] xnZu ij lkeus dh rjQA ,oa ck;h rjQ FkkbZjkbZM dkfVZyst ds mij! pksV ua0 ikap %& 3 x1 lseh] xnZu ij ck;h rjQ] ck;h esafMiy vfLFk ds ,axy ijA^^ The existence of these injuries couple with the marked signs of strangulation, clearly establish that the accused first violently assaulted the deceased so as to repel any chances of resistance and then strangulated her to death. Then the dead body was hanged in an attempt to give the incident an appearance of suicidal hanging.
PW-5 Badrilal, PW-6 Tejsingh, PW-7 Madanlal and PW-8 Babulal, were the witnesses who attested Ex.P/2 (Panchayat- nama of the dead body), Ex.P/3 (Supurdginama of dead body) and Ex. P/5 (recovery memo of rope).
The site inspection memo (Ex.P/4) was proved by PW-1 Bherulal and PW-3 Rahul; and the First Information Report (Ex.P/10) was proved by the Investigating Officer, PW-13 Bhanwar Singh.
All these witnesses have reached at the place of occurrence soon after the incident and saw the deceased in hanging position and stated that they heard that Gulab Bai was hanged by Dayaram.
PW-13 Bhanwar Singh was posted as Station House Officer (SHO) at Police Station Hathuniya, on the date of incident, i.e., (Downloaded on 18/02/2021 at 09:07:28 PM) (19 of 21) [CRLAD-172/2018] 12.05.2012. He stated on oath that on the written report, he registered FIR No. 56/2012 and took the responsibility of investigation; that on the report (Ex.P/1), C to D my signatures were there, A to B signature of Bherulal were there and E to F is the noting of action taken by the police; while proving the steps of investigation undertaken by him, he stated that the case No. 56/2012 under Section 302 IPC was investigated by him; he further stated that report was submitted by Bherulal which was Ex.P/1, Panchayatnama of the dead body was Ex.P/2, Postmortem Report was Ex.P/3, Site Inspection Report was Ex.P/4 and recovery memo of rope was Ex.P/5 and he also stated that statements of Badrilal, Babulal, Bherulal, Jasoda Bai, Bagdiram, Kaniram, Rahul, Jagdish, Tejsingh, Madanlal and Guddi Bai were taken by him, as they stated, he had written the same, neither anything was omitted nor added; after completion of investigation, charge-sheet was filed against Dayaram under Section 302 IPC.
PW-14 Kamlashanker is the Photographer and photographs, Ex. P/13 to Ex.P/22 were snapped by him.
PW-9 Bagdiram is the elder son of the deceased Gulab Bai and elder brother of the accused-appellant Dayaram. Although he has not fully supported the story of the prosecution and partially supported the defence taken by the accused-appellant but his evidence is based on mere conjectures. Since, it is an admitted position that this witness resides in another village, i.e., Sandiya, District Neemuch, Madhya Pradesh, therefore, he could not reach at the place of occurrence soon after the incident. It is relevant to mention here that this fact was supported by him that, his mother told him that Dayaram demanded the registry of the house repeatedly and Dayaram would have sold or mortgaged the house (Downloaded on 18/02/2021 at 09:07:28 PM) (20 of 21) [CRLAD-172/2018] if he could lay his hands on the title deed. Thus, his evidence is sufficient to impute motive to the accused.
The learned Trial Court thoroughly appreciated and discussed the evidence led on behalf of the prosecution. As per the statements of PW-3 Rahul, PW-4 Jasoda Bai, PW-1 Bherulal, PW-9 Bagdiram and PW-10 Guddi Bai, the accused-appellant Dayaram had a motive to commit the offence; relations between the accused-appellant Dayaram and the deceased were strained and the ocular testimony as deposed by child witness PW-3 Rahul is by itself sufficient to conclude the guilt of the accused-appellant and does not require any corroboration.
In these circumstances, we are of the firm opinion that the prosecution has proved its case against the accused-appellant beyond reasonable doubt that he murdered his mother Gulab Bai by strangulating her in their house. So far as, the aspect of contradictions is concerned, after minute scanning of the evidence available on record, we are of the opinion that there is no material contradiction in the statements of the witnesses; similarly, so far as, the aspect in regard to motive, suffice it to say that as per statement of PW-3 Rahul, PW-4 Jasoda Bai, PW-1 Bherulal, PW-9 Bagdiram and PW-10 Guddi Bai, it is clear that the accused Dayaram had harassed his mother Gulab Bai and was pressurizing her to give up the title documents of the house so that he could either mortgage or sell out the house in which, the occurrence took place and in this view of the matter, we are satisfied that the accused-appellant Dayaram had a strong motive for committing the murder of his mother Gulab Bai.
There was additional argument given that the informant Bherulal has a criminal record and he was also interested in the (Downloaded on 18/02/2021 at 09:07:28 PM) (21 of 21) [CRLAD-172/2018] house in question. On perusal of the record available on record, there is no iota of evidence available on record in this regard. On the contrary, PW-10 Guddi Bai stated that she did not want to take any share in the house; Bherulal and Jasoda also did not want to take any share in the house; it was wrong to say that Bherulal and Jasoda joined hands and lodged a false case against Dayaram; it was wrong to say that they had lodged this case with the motive to get the house; that his father had neither sold any land nor deposited any money in the bank; it is wrong to say that they conspired to falsely implicate Dayaram; even PW-11 Kaniram, who is another son-in-law of the deceased, categorically stated that there is no quarrel between Bherulal and Dayaram. As such, other arguments advanced by the learned counsel for the appellant need not be discussed.
In view of the above, we find no reason whatsoever to interfere with the findings of the trial Court while convicting the accused-appellant for the offence under Section 302 IPC vide impugned judgment dated 08.07.2015. Therefore, we are of the view that there is no force in the appeals. Consequently, the same are dismissed. The impugned judgment dated 08.07.2015 passed in Sessions Case No. 70/2013 titled as "State Vs. Dayaram" by the learned Additional Sessions Judge & Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Pratapgarh is upheld.
The record of the trial Court be sent back forthwith.
(DEVENDRA KACHHAWAHA),J (SANDEEP MEHTA),J
12-13-Mohan/-
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