Research › Search › Judgment

Rajasthan High Court · body

2001 DIGILAW 518 (RAJ)

Banwari Lal v. State of Rajasthan

2001-03-28

KHEM CHAND SHARMA, SHIV KUMAR SHARMA

body2001
Honble SHARMA, J.–This appeal by uxoricide is directed against the judgment dated 3-4/8/1994 passed by the learned Additional Sessions Judge No.1, Jaipur City, Jaipur by which he has convicted him for the offence under Section 302 IPC and sentenced him to undergo imprisonment for life. (2). On 7.7.1993 at about 3.30 PM, one Babu Lal lodged a written report, Ex.P.3 at Police Station, Mansarovar, Jaipur stating therein that the accused appellant has murdered his wife Smt. Narbada by inflicting knife blows and his grand daughter Kumari Laxmi aged 12 years informed him about the incident and on being informed by her he himself saw Smt. Narbada lying in a dead condition out side the house No. 115/103 having injuries on her abdomen. The Police registered a case No. 110/93 for offence under Sec. 302 IPC vide FIR No.,Ex.P.10 and proceeded to investigate the case. During investigation, the police inspected the site and prepared site plan Ex.P.2. He collected sample of control soil and blood smeared soil from the place of incident vide Ex.P.4 and P5, respectively. The Police arrested accused Banwari Lal vide arrest memo Ex.P.9 and took in possession his shirt which he was wearing and one bag containing a shirt vide Ex.P.6 and P. 7 respectively. The police also recovered a knife on the information of accused Ex.P.11, vide recovery memo Ex.P.8. The site plan of the place from where knife was recovered is Ex.P.8-A. The Investigating Officer prepared Panchayatnama of the dead body of deceased Narbada, which is Ex.P.1. The Medical Jurist conducted the post mortem of the dead body of Narbada vide his report Ex.P.12. The accused was also examined for his injuries and his injury report is Ex.D.1. (3). After completion of investigation, the Police submitted a charge sheet against the accused in the court of Additional Munsiff and Judicial Magistrate No. 13, Jaipur City, Jaipur, who, in turn, committed the case to the court of Sessions. (4). The learned Additional Sessions Judge after considering the material on record, framed charge against the accused appellant under Sec. 302 IPC. The charge was read over and explained to the accused, to which he pleaded not guilty and claimed trial. (5). To prove the charge against the accused, the prosecution examined as many as 10 witnesses and exhibited some documents. The learned Additional Sessions Judge after considering the material on record, framed charge against the accused appellant under Sec. 302 IPC. The charge was read over and explained to the accused, to which he pleaded not guilty and claimed trial. (5). To prove the charge against the accused, the prosecution examined as many as 10 witnesses and exhibited some documents. After recording prosecution evidence, the learned trial court examined the accused under Section 313 Cr.P.C. for the purpose of enabling him personally to explain the circumstances appearing against him. The accused in him defence also examined DW 1 Dr. D.W. Temani. (6). After completion of trial and after hearing the arguments of the counsel for the accused and the Public Prosecutor, the learned trial court found the accused appellant guilty for offence under Sec. 302 IPC and convicted and sentenced him as aforesaid. (7). In assailing the conviction, the learned counsel for the accused appellant has argued that there are material contradictions and inconsistencies in the statements of the prosecution witnesses and the findings arrived at by the learned trial court are based on misreading of the material evidence on record. He further argued that PW 3 Kumari Laxmi is the only eye witness. She has given the statement as a tutored witness and the learned trial court has seriously erred in relying on her statement. He also submitted that the recovery of knife is also suspicious and that the prosecution has failed to explain the injuries found on the body of accused appellant. Lastly, the learned counsel submitted that from the evidence and material on record, the prosecution has not been able to prove guilt against the accused appellant beyond reasonable doubt and therefore, he deserves to be acquitted. (8). On the other hand, learned Public Prosecutor has supported the judgment of the trial court and contended that the learned trial court after proper appreciation of evidence and considering the material on record has rightly held the accused appellant guilty of committing murder of his wife. (9). To consider the arguments advanced by the learned counsel for the accused appellant and to examine the findings arrived at by the learned trial court, it would be appropriate to first refer to the prosecution evidence, relevant to decide the present appeal. (10). (9). To consider the arguments advanced by the learned counsel for the accused appellant and to examine the findings arrived at by the learned trial court, it would be appropriate to first refer to the prosecution evidence, relevant to decide the present appeal. (10). PW 1 Kailash Chand Saini and PW 4 Surendra Singh are witnesses to the Panchayatnama, Ex.P.1 of dead body of deceased and the site plan, Ex.P.2. PW 4 Surendra Singh has also stated that the police collected plain soil and blood smeared soil from the place of occurrence and prepared Ex.P.4 and Ex.P.5. He further stated that the police arrested accused in his presence vide Ex.P.9 and also took in possession one bag and a shirt vide Ex.P.6 and P.7 and also recovered a knife from the accused vide Ex.P.8. PW2 Bhagwan Sahai merely deposited 5 sealed packets in Forensic Science Laboratory, Jaipur. (11). PW 3 Laxmi, who is the sole eye witness to the occurrence has, in her examination in Chief, stated that prior to the incident she, her mother Narbada and her father (accused appellant) were living together. But lateron, due to quarrel between her mother and the accused, she and her mother started living with her grand father. At 3 PM on the date of incident, her father came there and started beating her mother. He inflicted 16 injuries by knife and lastly 17th injury was caused by knife on the abdomen of her mother. She narrated the incident to her uncle and grand father, who were at their shop at the time of incident. However, in her cross-examination, PW 3 Laxmi has stated that at the time of incident she was not at home and, therefore, she did not see his father inflicting injuries on her mother. She further stated that her brothers Raju and Gopal threatened her at the point of knife and asked her to give statement against her father in the police. She has further stated that because of threatening and fear of Raju and Gopal she had stated in her examination in chief that her father (accused appellant) inflicted injuries on her mother. (12). PW 5 Devidatta, brother of the accused has stated that due to quarrel between the accused and Narbada, Narbada came to reside with his father. On 7.7.93 his niece Laxmi informed them at their shop that accused has killed Narbada. (12). PW 5 Devidatta, brother of the accused has stated that due to quarrel between the accused and Narbada, Narbada came to reside with his father. On 7.7.93 his niece Laxmi informed them at their shop that accused has killed Narbada. When they arrived at the spot, they saw Narbada lying dead. In cross-examination, the witness has stated that some of his neighbours informed him about the incident. (13). PW 6 Ramhet, S.H.O. has stated that having received telephonic message he reached at the place of incident, where a person named Babu Lal submitted a report, Ex.P.3. He prepared site plan Ex.P.2, took in possession plain soil and blood smeared soil vide Ex.P.4 and P.5, prepared Panchayatnama, arrested the accused vide arrest memo Ex.P.9, took in possession one bag containing a shirt vide Ex.P.6 and P.7, recovered knife vide Ex.P.8 on the information of accused, Ex.P.11 and prepared site plan Ex.P.8 A. (14). PW 7 Dr. P.C. Vyas, Medical Jurist conducted post-mortem on the body of deceased Narbada and found 15 injuries on her body vide his report Ex.P.12. He opined that the cause of death was syncope as a result of injuries to heart, liver and stomach, which were sufficient in the ordinary course of nature to cause death. In cross-examination, he has stated that the injuries present on the body of Narbada did not appear to be caused by a rusted knife as the margins of injuries are clear. (15). PW 8 Babu Lal, father of the accused having received information at his shop from some person reached at his house and found Narbada lying dead out side the gate of house. He informed the police about the incident on telephone and when police reached at the spot, he submitted a written report, Ex.P.3. (16). From the statements referred to above, it is evident that P.W. 3, aged about 10 years who is the daughter of deceased Narbada and accused appellant Banwari Lal has only witnessed the incident and is the sole eye witness. The learned trial court has based its conviction mainly on the basis of evidence of PW 3 Laxmi, the injuries found on the person of deceased Narbada and the recovery of weapon of offence. The learned trial court has based its conviction mainly on the basis of evidence of PW 3 Laxmi, the injuries found on the person of deceased Narbada and the recovery of weapon of offence. PW 3 Laxmi, in her cross- examination has disclosed that her brothers Raju and Gopal threatened her at the point of knife to give false statement before the police to the effect that she saw her father inflicting injuries on her mother. She further deposed that it was on account of fear of her brothers that she stated in her examination in chief about infliction of injuries by her father to her mother. (17). The present case hinges mainly on the evidence of PW 3 Laxmi, a child witness and, therefore, we have to be more careful while considering whether the child was under the influence of any tutoring. On a minute reading of her statement, we find that her answers to the questions in the cross-examination clearly indicate that she was tutored and she was made to give statement to the Police and before the court during trial of the case. The witness in her cross-examination has categorically stated that whatever she stated about infliction of injuries by her father to her mother was because of threat and fear. Therefore, we find it highly unsafe to place reliance on the evidence of PW 3 Laxmi. In an identical case, namely, Chhagan Dame vs. State of Gujrat, (1), the Honble Supreme Court observed that in a case of child witness, the court has to carefully consider whether the child was under the influence of any tutoring. The Apex Court having found that the witness was made to give evidence in accordance with the earlier statement recorded under Section 162 and was a tutored witness, held that `we find it highly unsafe to place reliance on her evidence. (18). In the case in hand, having considered the evidence of PW3 Kumari Laxmi, the sole witness to the occurrence, we have no hesitation in saying that this witness was under the influence of tutoring of her two brothers as is evident from her cross- examination wherein her answers to the question clearly indicate that she was tutored and, therefore, we find it highly unsafe to place reliance on her evidence. (19). (19). The other circumstances found favour to the learned trial court in arriving at the conclusion of guilt against the accused appellant were the recovery of knife and injuries found on the person of deceased. (20). So far recovery of weapon of offence i.e. knife allegedly used in the comm- ission of offence is concerned, we find that recovery of knife has been made from the place i.e. the Park, which is accessible to the public at large as is evident from the site plan of recovery of knife, Ex.P.8-A. Thus the recovery of knife from open place accessi- ble to public at large makes the recovery highly suspicious and therefore, it would be unjust and unsafe to rely on recovery of weapon of offence. That apart, the knife recov- ered was in rusted condition and from the record we do not find any report of Forensic Science Laboratory so as to connect the weapon with the commission of offence. Since the knife was in rusted condition, it must be seen whether the infliction of blows on the person of deceased by a rusted knife could have resulted in injuries of the nature found on the person of deceased. We have gone through the statement of PW7 Dr. P.C. Vyas and the injuries of deceased Narbada. The doctor has stated that these injuries cannot be caused by a rusted knife as the margins of the injuries are clear. (21). Lastly, the injuries found, fifteen in number, on the body of accused remained unexplained. These injuries are not only abrasions and bruises, but incised wounds as well. DW 1 Dr. B.C. Temani who examined the injuries of the accused has stated that these injuries cannot be said to be self inflicted injuries. He has further stated that injuries No.12 to 14 can be sustained in the process of saving a person from being attacked by other by a sharp edged weapon. The burden to explain the injuries on the person of accused heavily lies on the prosecution rather than to be explained by the defence and the prosecution has failed to explain the injuries found on the body of accused. The burden to explain the injuries on the person of accused heavily lies on the prosecution rather than to be explained by the defence and the prosecution has failed to explain the injuries found on the body of accused. Therefore, non-explanation of injuries of accused leads us to draw an inference that the prosecution witnesses are not truthful and have not come forward with their true version and happening of the incident and that the prosecution has suppressed the truth and genesis of the occurrence. (22). In view of our above findings, we hold that the learned court has erred in convicting the accused appellant for offence under Sec. 302 IPC while relying upon the statement of PW 3, the recovery of weapon of offence and the injuries found on the body of deceased Narbada. Therefore, the judgment under appeal cannot be sustained in the eye of law. (23). In the result, the appeal succeeds and is hereby allowed. The conviction and sentence of the accused appellant for offence under Section 302 I.P.C. is set aside and the accused appellant is acquitted of the offence charged with. He is in jail and be released forthwith, if not required in any other case.