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2004 DIGILAW 116 (RAJ)

Bhura Ram v. State of Rajasthan

2004-01-22

O.P.BISHNOI, RAJESH BALIA

body2004
JUDGMENT 1. This jail appeal has been filed by Bhura Ram S/o Surta Ram 'Kumhar' resident of Village Sankada against the judgment dated 8.6.2000 by the learned Sessions Judge, Jaisalmer whereby the appellant has been found guilty for the offences punishable under Sections 302 and 498A of the IPC. His father Surta Ram was a co-accused and was tried for the offences punishable under Section 302 read with Section 109 and 498A of the IPC who has been acquitted by the learned trial court of both the charges. 2. PW4 Anoparam S/o Kanaram 'Kumhar resident of Pokaran on 21.10.98 at 8 p.m. lodged a written report Ex.P/4 before PW10 Chokha Ram (SHO Police Station Sankada) at Government Hospital Pokaran and on its basis a case under Section 302, 304B and 498A r/w Section 34 of the IPC s was registered at police station Sankada. 3. According to the FIR Ex.P/4 the complainant Anoparam had two daughters, Gempu (a) Laxmi (deceased) and Smt. Maggi (PW15), who were married some six months back to two brothers Bhura Ram (appellant) and Khima Ram respectively. According to the report Ex.P/4, after marriage the two sisters started to live at their inlaws' place in village Sankada and right from the beginning both were being harassed by the two accused persons who were father and son, in connection with demand of dowry. It was alleged that many a times the deceased Gempu was given severe beating in connection with the said demand. Around 15 17.10.98 Anoparam had gone to the house of the accused persons where both the girls complained to their father that they were being harassed by Bhura Ram and Surta Ram in connection with demand of dowry and at times no food was served to them and they were regularly belaboured and the deceased Gempu further conveyed that she was likely to be murdered 20 by the accused persons. Anoparam offered to take them back to his house but the accused persons refused the permission and said that he could take them with him after Diwali. Further it was stated that Anoparam, with his wife (PW-16 Smt. Mangi), had gone to Phalodi where he received a message on telephone to the effect that Gempu had been murdered. Anoparam offered to take them back to his house but the accused persons refused the permission and said that he could take them with him after Diwali. Further it was stated that Anoparam, with his wife (PW-16 Smt. Mangi), had gone to Phalodi where he received a message on telephone to the effect that Gempu had been murdered. He rushed back to Pokaran where his daughter PW-15 Maggi narrated that at about 4 p.m. on that day when the deceased Gempu was cleaning the utensils and Maggi was sweeping the house, the accused Surta Ram instigated his son Bhura Ram to murder the deceased and on accunt of this instigation the appellant Bhura Ram inflicted a number of injuries to the deceased by a 'Kulhadr, as a result of which the deceased Smt. Gempu was fatally wounded. According to the report Khemaram, Chandararn and Smt. Maggi took the injured Smt. Gempu to the hospital at Pokaran but she breathed her last in between and died before reaching the hospital. Anoparam in this way received the details from his daughter PW-15 Maggi and lodged the report to Chokha Ram SHO, Police Station Sankada, who had reached the hospital at Pokaran after receiving a wireless message at police station Sankada. After the investigation was over, both the said accused persons were challaned and charges were framed against both as stated in the beginning. Both pleaded not guilty. 18 witnesses 40 were examined by the prosecution and DW1 Chanana Ram and DW-2 Nakhata Ram were examined in defence. The accused persons in their statements recorded under Section 313 of the IPC stated that none of them was present in the house at the relevant time and they had been implicated falsely. PW-Chanana Ram and DW-2 Nakhata Ram have both deposed to 45 the effect that the two accused persons were not present in the house when the incident took place. According to these witnesses the deceased was very quarrelsome and used to pick up quarrel with the neighbours. Argument were then heard by the learned trial court and the judgment was delivered on 8.6.2000. The accused Surta Ram was acquitted and the appellant Bhura Ram was found guilty. According to these witnesses the deceased was very quarrelsome and used to pick up quarrel with the neighbours. Argument were then heard by the learned trial court and the judgment was delivered on 8.6.2000. The accused Surta Ram was acquitted and the appellant Bhura Ram was found guilty. For the offence punishable under Section 302 of the IPC life imprisonment with a fine of Rs.5,000/- has been awarded to the appellant and on non-payment of fine simple imprisonment for 6 months has been awarded. For the offence punishable under Section 498A of the IPC 1 rigorous imprisonment for three years and a fine of Rs. 2,000/- and simple imprisonment for three months on account of non-payment of fine has been awarded. Feeling aggrieved this appeal has been filed by Bhura Ram. 4. We have heard the learned Amicus Curiae for the appellant and the learned Public Prosecutor for the State and have goen through the record of the trial court. 5. PW-4 Anoparam and PW-16 Smt. Mangi are the father and mother of the deceased and both have deposed to the effect that as and when the two daughters used to come, they complained that they were being harassed by to the in laws in connection with the demand of dowry. Both nave stated that on he fateful day, they both had gone to Phalodi where the information about he incident was received over telephone and thereafter, they reached Pokaran where their daughter Maggi told them about the incident and the written report Ex.P/4 was produced by Anoparam to the SHO Police Station Sankada. 6. PW-7 Manak Lai, PW-8 Babulal and PW-9 Dhuda Ram were examined in the capacity of independent witnesses to corroborate the prosecution story to the effect that the deceased used to harassed in connection with the demand of dowry but all the three did not support the prosecution story in this respect and were declared hostile witnesses. 7. PW-10 Chokha Ram, SHO Police Station Sankada has stated that he received a wireless message from police station Pokaran and reached the hospital at Pokaran where the written FIR Ex.P/4 was produced to him by Anoparam on the basis of which a case under Sections 304B, 302, 498A/34)f the IPC was registered and the formal FIR Ex.P/14 was recorded. PW-14 'Jarayan Lal Choudhary, Dy. PW-14 'Jarayan Lal Choudhary, Dy. Superintendent of Police has stated that the was investigated by him and during investigation he collected the vidence, recorded the statements of the witnesses and arrested the two accused persons. PW-5 Bhanwar Singh, Constable; PW-12 Rakesh Meena, Constable and PW-17 Nakhatmal, Head Constable have deposed to the effect that certain articles in a sealed condition were sent for chemical examination to the FSL, Jaipur. PW-1 Ramanlal, PW-2 Arjunram, PW3 Prayagram, PW6 Sri Krishna and PW18 Hukma Ram are motbir witnesses who were made to sign the various documents during the investigation in the case. 8. PW-11 Dr. Shantilal Purohit and PW-13 Dr. R.K. Meena have deposed to the effect that on 22.10.98 a Medical Board consisting of both of them and Dr. K.L. Panwar was constituted and the autopsy on the dead body of Smt. Gempu was performed by them. They have stated that the following ante-mortem injuries were found on the person of the deceased: 1. Contusion-Abrasion : 4 x 2 cm on the sin of Left Tibia. 2. Incised wound: 10 x3 X3 cm on the temporomendibular region (Rt. 45 side) with fracture of underlying bones and crushing of brain matter at Rt. Temporal part. 3 X3 X 4 cm (brain matter) 3. Incised wound: 9x 1/4 X 6 cm on the coitre of scalp with of Lt. Parietal, Rt. side of occipital & Lt. Temporal bones the brain matter underlying occipital bone & Lt. Parietal bone crushed 5 X 5 X 8 50 Cm. 4. Fracture: Right middle fossa (leinear) of the base of skull. 9. They have further statea that me Post-mortem Report Ex.P/15 was prepared by them and the injury No. 2 and 3 were by sharp-edged weapons and were capable of causing death individually in the ordinary course of nature. Dr. Meena has deposed that these fatal injuries could be caused by the 'Kulhadi' Article-2. Both the Doctors have opined that as a result of the said injuries the brain was crushed and there was loss of blood which resulted into the death of Smt. Gempu. In cross-examination Dr. Meena has stated that there was not much time between the causing of the injuries and death. 10. PW-15 Smt. Maggi is the sister of the deceased and has stated that she was an eye-witness of the occurrence. In cross-examination Dr. Meena has stated that there was not much time between the causing of the injuries and death. 10. PW-15 Smt. Maggi is the sister of the deceased and has stated that she was an eye-witness of the occurrence. She has stated that both the sisters were married to the two brothers and the appellant Bhura Ram used to harass the deceased in connection with demand of dowry. Regarding the incident she has stated that while she was sweeping the floor of the house and the deceased was cleaning the utensils, the appellant Bhura Ram picked up a 'kulhadi' and started inflicting injuries to the head of the deceased. Seeing this, she rushed towards the injured and fell on her and the appellant ran away after dropping the 'Kulhadi. on the spot. She has stated that thereafter the injured was taken to the hospital where she died. The witness stated that the co-accused Surta Ram was not present in the house when the incident took place. 11. So far as the finding of guilt for the offence punishable under Section 498A of the IPC is concerned, we are of the view that the conclusions drawn by the learned trial court against the appellant are not sustainable. To bring home the charge under Section 498A of the IPC, the prosecution has to establish that the wife was subjected to cruelty on account of some wilful conduct of the husband or a relative of the husband which was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or mental or physical health of the woman or the prosecution proves that there was harassment of the woman with a view to coercing her to meet any lawful demand for any property etc. In the instant case though the allegation is to the effect that there was a constant harassment of the deceased in respect of the demand of dowry, we find that the evidence in this respect is far from satisfactory. As pointed out earlier all the three independent persons PW-7 Manak Lal, PW-8 Babulal and PW-9 Dhudaram, who were examined in connection with the harassment of the deceased on account of the alleged demand of dowry, have turned hostile and none has supported the prosecution story to the deceased in respect of any demand of dowry by the appellant. As pointed out earlier all the three independent persons PW-7 Manak Lal, PW-8 Babulal and PW-9 Dhudaram, who were examined in connection with the harassment of the deceased on account of the alleged demand of dowry, have turned hostile and none has supported the prosecution story to the deceased in respect of any demand of dowry by the appellant. It may also be noted here that the deceased was living in village Sankada after her marriage and not a single person of village Sankada has been examined to corroborate the prosecution case to the effect that any demand of dowry was ever made by the appellant or by any other member of his family. Neither the FIR nor PW-4 Anoparam has disclosed as to what property was being demanded in dowry. According 45 to the FIR it was the co-accused Surta Ram who instigated the appellant Bhuraram to cause injury to the deceased but during trial this aspect of the case was neither supported by Anoparam nor by the eye-witness PW-15 Maggi. In these circumstances, we are of the view that there was no satisfactory evidence to arrive at finding of guilt in respect of Section 498A of so the IPC. 12. So far as the offence punishable under Section 302 of the IPC is concerned, the learned Amicus Curiae has taken us through the evidence and has argued that the FIR Ex.P/4 is a post investigation document and the evidence regarding the recovery of the 'Kulhadi' at the instance of the appellant is a complete application. Our attention has been drawn towards the cross-examination of PW-15 Maggi who has stated that before the deceased could be shifted from the place of occurrence the police had already reached at their house and the 'Kulhadi', which was lying on the spot, was taken away by the police. We nave noted this infirmity and we are of the view that so far as the recovery of the 'Kulhadi' at the instance of the appellant is concerned. the evidence is unbelievable and the story of recovery at the instance of the appellant is a fabrication. Smt. Maggi, in her examination-in-chief, has specifically stated that after inflicting the injuries the appellant took to his heels after dropping the weapon of offence on the spot. the evidence is unbelievable and the story of recovery at the instance of the appellant is a fabrication. Smt. Maggi, in her examination-in-chief, has specifically stated that after inflicting the injuries the appellant took to his heels after dropping the weapon of offence on the spot. During the cross-examination she was admitted that the police reached the place of occurrence on 21.10.98 itself and collected the 'kulhadi' from the place of occurrence. Needless to say that 15 in the light of this deposition it becomes more than evident that the story of recovery of the 'Kulhadi' at the instance of the appellant does not hold much water. 13. The learned Amicus Curiae has then argued that the co- accused Surta Ram has been acquitted on the basis of the deposition of Smt. Maggi 20 who has stated that Surta Ram was not even present at the time of the occurrence. According to the learned Amicus Curiae, the FIR Ex.P/4 was Allegedly lodged at the information supplied by Smt. Maggi and since Smt. Maggi has denied the presence of the co-accused it cannot be said that her deposition in respect of the appellant is of sterling worth. It is submitted that 25 the evidence in respect of the alleged demand of dowry being highly unsatisfactory, there remains no motive on the part of the appellant to murder his own wife. We are of the view that simply because Smt. Maggi did not-implicate the co-accused, her remaining evidence cannot be discarded. The author of the injuries, according to the FIR, was the appellant and during her 30 deposition Smt. Maggi has stood the cross-examination and has stood by the story that the fatal injuries to the deceased were caused by none else but the appellant. It has come during her cross- examination that during the trial a 'Panchayat' was convened which imposed a fine of Rs.1,50,000/- on the co-accused Surta Ram and that fine has been paid by him. May be on that account Smt. Maggi has resiled from the story against Surta Ram. So far as her deposition against the appellant regarding causing injuries to the deceased is concerned we find no reason to disbelieve Smt. Maggi. May be on that account Smt. Maggi has resiled from the story against Surta Ram. So far as her deposition against the appellant regarding causing injuries to the deceased is concerned we find no reason to disbelieve Smt. Maggi. So far as the argument that there remains no motive for the murder, needless to say that in a case when the incident is witnesses by an eye-witness the question of motive does not remain primary. May be that the real motive was in the exclusive knowledge of the deceased and the appellant and has not come on record at all. 14. It is true that in her cross-examination Smt. Maggi has admitted that prior to the transfer of the injured to the hospital the police had arrived at the scene of occurrence and in this way it is suggested that though the police came at the place of occurrence and still no FIR was recorded. We have noticed this infirmity but in the peculiar circumstances of the case, simply on account of this, we are not inclined to disbelieve the prosecution case against the appellant. In the facts and circumstances of the case, on the Consist of this misdemeanour on the part of the police no benefit can be allowed to accrue to the appellant when otherwise there is very satisfactory evidence to believe the prosecution case regarding causing of the fatal injuries to the deceased by the appellant. Smt. Maggi is the sister of the deceased. It is highly unnatural that she will allow the real culprit to go scot free and implicate her own bother-in-law falsely. During cross-examination of the witnesses it is suggested that the deceased was a woman of quarrelsome nature and used to pick up quarrel with the neighbours. It is suggested that she was possibly murdered by the neighbours. The deposition of DW-1 Chanana Ram and DW-2 Nakhata Ram is also to that effect. We, however, are not inclined to agree with the said suggestion. Had that been the case, then it was rather natural that the FIR would be lodged by the in laws of the deceased against the neighbours. 15. In the result the appeal is allowed in part. The impugned judgment finding the appellant guilty for the offence punishable under Section 498A of the IPC is set aside and the appellant is acquitted of the said charge. 15. In the result the appeal is allowed in part. The impugned judgment finding the appellant guilty for the offence punishable under Section 498A of the IPC is set aside and the appellant is acquitted of the said charge. The appeal in respect of finding of guilt and conviction under Section 302 of the IPC is dismissed. The judgment of the learned trial court shall stand modified accordingly.Appeal Partly Allowed As Above. *******