Sumer Singh v. State of Rajasthan — 1996 DIGILAW 1003 (RAJ)

Honble SINGH, J. – Heard the learned counsel for the appellant and learned Public Prosecutor for the State and perused the record of the case. (2). The appellant Sumer Singh was tried by the learned District and Sessions Judge, Churu on charges punishable u/Ss. 302, 309 & 376 of the IPC. After trial he was found guilty on all the three counts and he was sentenced to undergo life impri- sonment u/S. 302, 6 months rigorous imprisonment and a fine of Rs. 100 and further imprisonment for 15 days for default in payment of fine u/S. 309 and rigorous imprisonment for 4 years and a fine of Rs. 200 and further imprisonment for one month for default in payment of fine u/S. 376 of the IPC. Feeling aggrieved by the verdict of conviction and sentence the appellant has filed this appeal. (3). The facts of the case briefly stated are as below : According to the FIR lodged on 24.1.1977 at about 9.30 p.m. by Dai Ram PW 9 on that day at about 5.00 p.m., he heard some hue and cry coming from the house of Balbir. He found that Sumer Singh was lying on ground and his elder brother Balbir and younger brother Ran Singh were present. On asking as to what had happened, Ran Singh told him that Sumer Singh had tried to hang himself. At that time Parmeshwari wife of Balbir was not visible and, therefore, a search was made for her and ultimately her dead body was found in the room where animals are kept. Her throat was cut and blood was coming from it, she was naked and there was one dagger and a coat lying near her dead body. On the basis of the FIR lodged by Shri Dai Ram PW 9, police Registered a case u/Ss. 302, 309 & 376 of the IPC and commenced the investigation. After usual investigation a challan u/S. 173(2) Cr.P.C. was submitted in the Court of learned Chief Judicial Magistrate, Churu, who committed the case to the District and Sessions Judge, Churu. (4). Charges u/Ss. 302, 309 & 376 of the IPC were framed against the accused- appellant. He pleaded not guilty of the charges and in prosecution proceeded to produce its evidence. As many as 12 witnesses were examined by the prosecution in support of its case. (4). Charges u/Ss. 302, 309 & 376 of the IPC were framed against the accused- appellant. He pleaded not guilty of the charges and in prosecution proceeded to produce its evidence. As many as 12 witnesses were examined by the prosecution in support of its case. The appellant was examined u/S. 313 of the Cr.P.C. He did not adduce any evidence in defence. In his statement recorded u/S. 313 of the Cr.P.C. The appellant denied all the circumstances appearing against him. (5). After carefully going through the evidence, the learned Sessions Judge came to the conclusion that the circumstantial evidence adduced by the prosecution was sufficient to convict the appellant on all the three counts. The circumstances, which in the opinion of the learned Sessions Judge, Churu, were established by the evidence on record were firstly, the marks of ligature on the neck of appellant which suggested that he tried to commit suicide after the alleged murder of Smt. Parmeshwari. Secondly, the recovery of a coat from the scene of occurrence and the presence of blood spot on the same. Thirdly, the recovery of some garments of appellant on which some blood stains were found. Fourthly, the circumstance that about one day prior to the date of occurrence accused had bro- ught his wife from his-in-laws house and therefore when he attempted intercourse with her she resisted the attempt and at that time Parmeshwari intervened and prevented the accused from proceeding with the sexual intercourse with his own wife. By implication the motive for commission of murder on the part of the appellant was that Parmeshwari tried to intervene when the accused after bringing his wife to his house tried to commit sexual intercourse with her. (6). We have gone through the evidence adduced by the prosecution. Almost all the material witnesses in this case have turned hostile. Ran Singh PW 1 is first witness who had given information that he had seen the appellant hanging from the ceiling and that he saved the life of the appellant and on the basis of the information given by Ran Singh an allegation that the appellant attempted suicide was made in the FIR by Dai Ram. Ran Singh PW 1 has turned hostile. So far as alle- ged motive is concerned, Kamla wife of appellant has been examined as PW 10. Ran Singh PW 1 has turned hostile. So far as alle- ged motive is concerned, Kamla wife of appellant has been examined as PW 10. She has not supported the prosecution version and deposed that after her arrival in husbands house she slept with her husband on both the nights and during night her husband did not go out and there was no quarrel between her and her husband. Regarding abrasion on neck of appellant she said that when she pushed her hus- band during his attempt he received that injury. This explanation appears to be after thought and learned Sessions Judge has not relied upon it. Since Smt. Kamla PW 10 has not supported the prosecution case the alleged motive of the murder of Smt. Parmeshwari by the appellant does not stand proved. The learned Sessions Judge after considering the evidence adduced by the prosecution came to the conclusion that it has not been established that the coat which was found at the scene of occurrence, belonged to the appellant. In our opinion, that finding of the learned Sessions Judge cannot be described as unreasonable. The learned Public Prosecutor has failed to point out any evidence to prove that the coat, which was found at the scene of occurrence, belonged to the appellant. (7). The learned Public Prosecutor has laid emphasis on the fact that Smt. Parmeshwari before her death was subjected to intercourse and according to Doctors Report semen was found in her vagina. But in our opinion in view of the statement of Balbir Singh, the husband of the deceased he had committed sexual intercourse with Parmeshwari on the date of occurrence and, therefore, mere pre- sence of semen inside the vagina of Parmeshwari cannot be used for the purpose inferring that she was raped. It is also pertinent to note that according to the testimony of the Doctor there were no marks of injury on the private parts and sexual intercourse with Parmeshwari has not been substantiated by any evidence circumstantial or otherwise. The learned Public Prosecutor has urged that murder of Parmeshwari was committed within the enclosure of her house and there was no reason for any outsider to have come to commit rape and cause her death. In this connection, it would be useful to refer to the cross-examination of Balbir, the husband of the deceased. The learned Public Prosecutor has urged that murder of Parmeshwari was committed within the enclosure of her house and there was no reason for any outsider to have come to commit rape and cause her death. In this connection, it would be useful to refer to the cross-examination of Balbir, the husband of the deceased. He has clearly stated in his statement that his wife parmeshwari was of loose Character. In our country husbands do not tolerate wives who are of loose character. Balbir Singh has stated in Court that his wife was of loose character and he cannot be presumed to have passively submitted to the illicit relations which his wife might be having with others. The circumstances suggest that Balbir, who believed rightly or wrongly that his wife was of loose character has a strong motive to cause her death. Therefore, aforesaid possibility cannot be ruled out and the benefit of doubt must go to the appellant against whom there is absolutely no evidence to suggest that he caused the murder of her sister-in-law Smt. Parmeshwari. (8). Having gone through the evidence, we are of the opinion in this case that the learned Sessions Judge, Churu committed grave error in appreciating evidence produced by the appellant. This was a case where the conviction was not justified on any count. (9). While parting with the judgment, we deem it our duty to remind the lower Courts of their responsibility u/S. 136 of the Indian Evidence Act which provides that it is a right and duty of the Judges to decide admissibility of evidence and when either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant, and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise. There are several decisions to the effect that the duty imposed on the Courts u/S. 136 of the Indian Evidence Act cannot be ignored and must be scrupulously performed. In this connection it would not be out of place to mention that the proviso given below Sec. 165 of the Indian Evidence Act clearly provides that the judgment must be based upon facts declared by this Act to be relevant, and duly proved. In this connection it would not be out of place to mention that the proviso given below Sec. 165 of the Indian Evidence Act clearly provides that the judgment must be based upon facts declared by this Act to be relevant, and duly proved. It is true that within meaning of Sec. 3 of the Indian Evidence Act whether a fact is proved or not ultimately depends on the belief of the Judge who tries the case and his belief is no doubt a personal phenomenon. But Sec. 3 of the Indian Evidence Act makes it obligatory to take into consideration all the matters placed before it and though the expression ``matters used in Sec. 3 of the Indian Evidence Act has not been defined anywhere yet in view of Sec. 136 and the proviso given below Sec. 165 of the Indian Evidence Act the ``matters must be those which are relevant as well as admissible. The presumption, which a Judge may draw u/S. 114 of the Indian Evidence Act, refers to several things including the ordinary course of conduct and when the Indian Evidence Act prescribes certain conduct on the part of the parties to a litigation, permitting them to produce, only relevant and admissible evidence, that conduct must be taken into account and no party should be permitted to rely upon any evidence which is not relevant and admissble. We have made these observations because the learned Sessions Judge in his judgment repeatedly referred to the statements made by witnesses u/S. 161 of the Cr.P.C. forgetting altogether that the statements recorded under Sec. 161 of the Indian Evidence Act are neither substantive pieces of evidence nor they can be used for the purpose of corroborating the prosecution story. They can be used only for contradicting the witnesses who are examined in Courts. Reliance upon contents of FIR as if it is a substantive piece of evidence is also impermissible because in several decisions of Apex Court and of this Court it has been held and it is no longer res integra that the FIR is not a substantive piece of evidence and can be used only for corroboration or contradiction. Reliance upon contents of FIR as if it is a substantive piece of evidence is also impermissible because in several decisions of Apex Court and of this Court it has been held and it is no longer res integra that the FIR is not a substantive piece of evidence and can be used only for corroboration or contradiction. If the learned Sessions Judge had taken care to go through the proviso in Sec. 165 of the Indian Evidence Act which we have referred in our judgment he would not have committed the mistake on relying upon inadmissible piece of evidence as substantive piece of evidence. (10). For the reasons stated above, this appeal deserves to be accepted. The conviction as well as sentence imposed upon the appellant u/Ss. 302, 309 & 376 of the IPC is hereby set aside. The appellant is on bail. He need not surrender. His bail bonds are discharged. Copy of this judgment be sent to the Registrar, Rajasthan High Court for circulation among all the Judicial Officers in this State.