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2005 DIGILAW 3168 (RAJ)

State of Rajasthan v. Heera

2005-11-30

MANAK MOHTA

body2005
Judgment N.N. Mathur, J.-The instant murder reference has been made by the learned Additional Sessions Judge (Fast Track), Doongarpur for confirmation of death sentence awarded to accused Heera S/o. Haja, having found him guilty of offence under Sections 302 and 376 IPC. A separate joint appeal has also been filed by Heera and Smt. Kaudi against the aforesaid Judgment dated 08.09.2005 convicting the first appellant-Heera for the offence under Section 302 IPC and awarding death sentence and to pay a fine of Rs. 300/-. He has also been convicted for the offence under Section 376 IPC and sentenced to imprisonment for life and to pay a fine of Rs. 300/-. The second appellant-Smt. Kaudi has been convicted of the offence under Section 302/34 IPC and sentenced to imprisonment for life and to pay a fine of Rs. 300/-. She has also been convicted for the offence under Section 376/34 IPC and sentenced to imprisonment for life and to pay a fine of Rs. 300/-. Appellant-Heera has also preferred appeal from jail. .2. The factual scenario as emerged during the investigation and trial is that the second appellant Smt. Kaudi a widow, aged 48 years, lived alone in the village Galandar Fala Pat Talai. Her son had gone to Ahmedabad for earning as a labour. The first appellant-Heera, aged 60 years also lived in same village and was on visiting terms with her. Her sister also lived in same village at a distance of 1 Km with her husband, son PW. 10 Gattu, his wife PW. 12 Sakuntala and deceased daughter Miss Seena aged 6 years. On 212.2004, PW. 10 Gattu lodged an oral FIR at about 9.15 A.M. at PS Bichhiwara, District Doongarpur stating inter alia that last evening i.e., 212.2004 on his return from the field, he did not find her daughter Miss Seena at the residence. On enquiry, it was disclosed by his parents that she had gone to the house of her aunt Smt. Kaudi (mothers sister). He also stated that Miss Seena .used to stay with her aunty during night in order to give her company. In the morning at about 5 A.M., her aunty Kaudi came to the house and reported that his daughter Seena has been killed by the enemies. He immediately rushed to the house of Kaudi and found his daughter hanging with the help of rope. In the morning at about 5 A.M., her aunty Kaudi came to the house and reported that his daughter Seena has been killed by the enemies. He immediately rushed to the house of Kaudi and found his daughter hanging with the help of rope. He brought the dead-body of Seena down. On this information, police registered a case and proceeded with investigation. The police prepared site-plan and the inquest report of the dead-body. The appellants were arrested. Pursuant to the information given by appellant-Heera, his underwear was recovered. The statement of PW. 9 Havji was recorded under Section 164 CrPC vide Exhibit P/2 dated 19.02.2005. After usual investigation, police laid charge-sheet against the appellants for the offence under Sections 302, 376, 302/34 and 376/34 IPC. 3. The appellants denied the charges levelled against them and claimed trial. The prosecution adduced oral and documentary evidence. The appellants in their statements recorded under Section 313 CrPC denied the correctness of the prosecution evidence appearing against them. The second appellant-Smt. Kaudi stated that in her house Seena was murdered by witness Havji. She also stated that Havji killed her by strangulation. She admitted that Seena use to stay at her residence. Smt. Kaudi appeared herself as defence witness, being DW. 3. Two other defence witnesses were examined. The trial Court discarded the evidence of recovery of underwear. However, relying on the testimony of PW. 9 Havji, supported by other evidence, found the charges levelled against the appellants proved. The trial Court while convicting first appellant-Heera of offence under Sections 302 and 376 IPC., sentenced to death. The second appellant-Kaudi has been convicted for the offence under Sections 302 and 376 with the aid of Section 34 IPC and she has been sentenced to imprisonment for life. 4. Assailing the conviction, it is submitted by the learned Counsel for the appellants that there is no creditable evidence to connect the appellants with the alleged crime. The entire case rests on the sole testimony of PW. 9 Havji. A careful scrutiny of the evidence on record would show that the entire investigation has been manipulated at the instance of PW. 9 Havji. There are tell-tale circumstances to show the implication of Havji himself in the crime. In order to save his own skin, he has manipulated the case. The prosecution is guilty of introducing false witness of occurrence of PW. 9 Havji. 9 Havji. There are tell-tale circumstances to show the implication of Havji himself in the crime. In order to save his own skin, he has manipulated the case. The prosecution is guilty of introducing false witness of occurrence of PW. 9 Havji. The prosecution story has not been supported even by the mother and father of the victim. Learned Counsel has vehementally criticized the periphery approach adopted by the learned trial Court, more particularly, in a case where he has chosen to award a death sentence. Learned Counsel has placed reliance on the Judgment of the Supreme Court in Shanker Lal vs. State, reported in 1981 (2) SCC 35 and a Division Bench Judgment of this Court State vs. Jamil, 2005 (2) WLC 478 and State vs. Rakesh, 2000 CrLR 497. On the other hand learned Public Prosecutor has supported the Judgment of the trial Court. .5. With the assistance of the learned Counsel for the parties, we have perused and critically scrutinized the entire evidence on record. It is not in dispute that Miss. Seena died of homicidal death. PW. 11, Dr. Hari Singh conducted the autopsy on the dead-body of Miss. Seena vide Exhibit-P/31 and noticed the following injuries ante mortem in nature: .“Bruises and abrasions whole round the neck in between chin and prominent part of Trachea 21.2 cm x 1¼ cm size redish brown colour present Transverse circular shape. Eyes are closed, pupils are dilated and fixed.” “Hymen is ruptured, margins of cervix is dark red in colour and two vaginal swab is bloody taken for chemical examination Ist distal phalynx of rt. Index pass in vagina orifice is circular in shape. PW. 11, Dr. Hari Singh opined as follows: “After holding the PM examination I am in opinion that the mode of death of K. Sooki Seena is Asphyxia trenous congestion due to strangulation. Bruises and abrasions present round the neck. Injuries on neck are ante mortem in nature.” 6. The first witness PW. 1, Smt. Ramila stated that on the date of incident, she woke up early in the morning at about 4 O clock and proceeded towards the house of appellant-Kaudi to bring back her bull. At the time, she noticed that lamp was burning inside the house of Kaudi and appellant-Heera running out. She returned to the house with bull and engaged herself in routine day to day household work. At the time, she noticed that lamp was burning inside the house of Kaudi and appellant-Heera running out. She returned to the house with bull and engaged herself in routine day to day household work. She pleaded ignorance as to the relations between Heera and Kaudi. She also stated that deceased-Seena use to sleep at the residence of Kaudi. The son of Kaudi stayed at Ahmedabad for earning. In the morning, she came to know from Gattu that his daughter Seena has been killed. In the cross-examination, she denied the suggestion of giving false statement at the instance of Havji. 7. PW. 2, Shanker stated that on the date of incident, he woke up at about 4- 4.30 in the morning to provide fodder to his bull. He noticed appellant-Heera running away from the house of Kaudi. He remained busy with his work. In the morning, he came to know from Gattu that his daughter Seena was killed. Appellant-Heera use to visit house of Kaudi once in 2-3 days. He pleaded ignorance as to the relations between Heera and Kaudi. He denied the suggestion of false implication of the accused at the instance of Havji. 8. PW. 3, Manji stated that on the date of incident in the night at about 10 P.M. he was on way to his house from the school and when he passed through the house of appellant-Kaudi, he found appellant-Heera entering in the house of Kaudi. He also stated that in the house of Kaudi a lamp was burning. In the morning, he came to know from Gattu that his daughter Seena has been murdered. He also stated that appellant-Heera used to visit the house of Kaudi. Kaudi lived alone in the house, as such the deceased-Seena used to stay with her and sleep during the night to give her company. He admitted that the complainant-Gattu had compromised the matter with the accused persons. He denied the suggestion that there was some dispute pertaining to land with Kaudi. He denied the suggestion of Havji entering into the house of Kaudi. 9. PW. 9, Havji has been produced by the prosecution as star eye-witness. He stated that in the night of 24th, he stayed on his flour-mill. In the morning i.e., on 25th , he got up early at about 3O clock for puja. He proceeded for his house. He denied the suggestion of Havji entering into the house of Kaudi. 9. PW. 9, Havji has been produced by the prosecution as star eye-witness. He stated that in the night of 24th, he stayed on his flour-mill. In the morning i.e., on 25th , he got up early at about 3O clock for puja. He proceeded for his house. On the way, when he was passing in front of house of Mst. Kaudi, he heard voice from the house of Kaudi saying “catch hold..... catch hold.”. The said person uttered the word “catch hold..... catch hold” twice or thrice. Thereafter he entered into the house of Kaudi as the gate was open. Inside the house, a lamp was burning, while Kaudi was pressing Seena and Heera formed knot around the neck and killed her by pulling the rope. Out of fear he ran away from the place of incident. He further stated that in the morning police prepared site plan (Exhibit-P/12), which bears his signature as motbir. The rope was also recovered in his presence vide (Exhibit-P/13). Similarly, he was also motbir of the recovery of underwear of the deceased. Police got his statement recorded under Section 164 CrPC after more than two months. In cross-examination, he admitted that he was the Mukhiya of village Galandhar Fala Pat Talai, however, he denied the suggestion that his relations with Heera for the last 20 years were hostile for election reasons. He also denied the suggestion that a case was registered against him for pouring kerosene on the wife of Heera. He also denied the suggestion that a case was registered against him for having committed rape on Kaudi on 08.09.2004. He further denied the suggestion that the rape case compromised in village Panchayat held at Mewara Choki on 22.09.2004. He denied the suggestion that while he was committing rape on Kaudi, Seena woke up, as such he killed her, so that she may not disclose this fact to others. 10. PW. 10, Gattu is the father of the deceased. He stated that in the morning at about 3 Oclock, Kaudi reported to him that his daughter has been killed by Havji. When he reached at the house of Kaudi, he found the dead-body of his daughter Seena lying on the cot. The police did not prepare the inquest report and other papers in his presence. The prosecution declared him hostile. When he reached at the house of Kaudi, he found the dead-body of his daughter Seena lying on the cot. The police did not prepare the inquest report and other papers in his presence. The prosecution declared him hostile. In cross-examination, he identified appellant-Kaudi as his aunty i.e., mothers sister. However, he denied the fact of Heera visiting the house of Kaudi. According to him Seena was about 5-6 years of age. He stated that his daughter Seena use to sleep at the house of Kaudi, as she was alone at her house. He denied any sort of meeting of Panchas on the issue of death of Seena and compromise with the accused appellants. He also denied the suggestion that he was giving false statement in order to help Heera and Kaudi. On cross-examination by the Counsel for the accused-appellants, he stated that his daughter was killed by Havji. He was obviously interested in the acquittal of Heera and Kaudi, as his daughter was killed by Havji. He further stated that Havji had poured kerosene on his mother 20 years back and a case in that regard was registered. A case was also registered against Havji for committing rape on Kaudi. In the morning of the date of incident, at about 3-4 A.M., Kaudi visited his house alongwith Rupa. The fact of Havji killing Seena was also disclosed by Rupa. He proceeded to the place of incident followed by his father-Heera, mother-Jamna, Lala, Punja, Thavra etc. In the morning, number of people from the village had assembled at the place of incident. He disclosed the fact of killing of Seena by Havji. After post-mortem, the police arrested Havji, Heera and Kaudi. He also complained of being threatened by PW. 9 Havji of dire consequence. 11. PW. 12, Smt. Shanta is the mother of the deceased-Seena. She stated that at the time of death of Seena, she was at her parents house. On the next day she was informed by her husband-Gattu about the killing of her daughter-Seena. She was told by her husband-Gattu that Seena was killed by Havji. In cross-examination, she denied the suggestion that their family had entered into compromise with the accused persons. She identified appellant-Heera as father of her husband-Gattu. She also stated that the deceased-Seena used to mostly stay with her father-in-law. 12. DW. 1 Smt. Jamna is the grand-mother of the deceased-Seena. In cross-examination, she denied the suggestion that their family had entered into compromise with the accused persons. She identified appellant-Heera as father of her husband-Gattu. She also stated that the deceased-Seena used to mostly stay with her father-in-law. 12. DW. 1 Smt. Jamna is the grand-mother of the deceased-Seena. According to her, Seena was killed by Havji. She came to know the said fact from Kaudi and Rupa in the early morning of the date of incident. 13. DW. 2 Rupa stated that on the date of incident at about 1.00 A.M. Kaudi visited her. She expressed her apprehension of being killed by the enemies. He took her to the house of Heera. Kaudi disclosed that she was being assaulted by Havji and, therefore, she run away from the house leaving Seena at residence. Thereafter Heera and his wife Jamna, Thavra etc., went to the spot. Gattu also went to the house of Kaudi. He was informed by Gattu about the death of Seena. 14. Appellant-Kaudi has appeared in the witness-box as DW. 3. She stated that on the date of incident, in the night Havji entered into her house and committed rape on her. When he was committing rape on her, Seena woke up and witnessed the incident. The deceased-Seena told Havji that she will make the incident public. On this, Havji put leg on the neck of Seena and killed her. On her intervention, she was being assaulted. She escaped from the place of incident and rushed to the house of Rupa and narrated the incident. She admitted her prior hostility with Havji. In cross-examination, she pleaded ignorance as to the presence of the villagers at the time of execution of compromise-deed (Exhibit-D/1). She admitted that no report was made by her to the police about the alleged rape committed by Havji on her. 15. From the scrutiny of the evidence referred above, it is evident that there are two set of witnesses - one implicating appellant-Heera and another PW. 9 Havji. Our endavour is not to find out the correctness of the either version but to assess the credibility of eye-witness PW. 9 Havji. It is significant that the version given by PW . 9 Havji does not find support from the statement of PW . 10 Gattu and PW . 12 Smt. Shanta, father and mother respectively of the deceased. Our endavour is not to find out the correctness of the either version but to assess the credibility of eye-witness PW. 9 Havji. It is significant that the version given by PW . 9 Havji does not find support from the statement of PW . 10 Gattu and PW . 12 Smt. Shanta, father and mother respectively of the deceased. Both of them denied the suggestion of obliging the accused persons because of the compromise entered into between the parties. Appellant-Kaudi has appeared in the witness-box. She made a specific allegation against Havji of committing rape on her on earlier occasion as well and in that regard produced compromise-deed (Exhibit-D/1 ). A reading of the compromise-deed (Exhibiit-D/1) indicates that a compromise had taken place between Havji and Kaudi with reference to an incident of rape. Thus, PW . 9 Havji cannot said to be an independent witness. His testimony is required to be scrutinized with greater care and caution. At the first place the version given by him to the effect that in the mid-night at about 3 O clock while he was on his way to his house and passed in front of the house of Kaudi, he heard the voice of a person saying “catch hold..... catch hold”, and thereafter he entered into the house and witnessed the incident, does not appear to be natural. It is significant to note that the site-plan (Exhibit-P/12) of the incident was prepared in his presence on 212.2004. It bears his signature as Motbir. It is averred therein that the deceased-Seena has been killed by some unknown person. The relevant portion of the site-plan (Exhibit-P/12) may be extracted as follows: atleast when police arrived and proceeded with the i lowed to say when site-plan (Exhibit-P/12) was prepared that Seena was killed by unknown person. In the morning of 25th the entire village had assembled, but he did not disclosed the name of the culprit, until next day i.e., on 212.2004. It is held by the Apex Court in Pandey Narain vs. State, 1979 SC 1097 and State vs. Venktesh, AIR 1992 SC 674 that when solitary eye-witness does not disclose the name of the assailant immediately after occurrence, conviction on his evidence alone is improper. Thus, taking into the totality of the circumstances i.e., hostility of PW. It is held by the Apex Court in Pandey Narain vs. State, 1979 SC 1097 and State vs. Venktesh, AIR 1992 SC 674 that when solitary eye-witness does not disclose the name of the assailant immediately after occurrence, conviction on his evidence alone is improper. Thus, taking into the totality of the circumstances i.e., hostility of PW. 9 Havji with the family of the victim, his antecedent particularly, compromising the incident of rape with Kaudi, his un-natural conduct of not reporting the incident, even before the police, he cannot be said to be a witness of sterling worth. The dramatic manner in which he has shown his presence at the place of occurrence; he can be placed in the category of chance witness. His claim to be an eye-witness is false and it can be said without hesitation that he has been falsely introduced as an ocular evidence. 16. After the evidence of PW . 9 Havji is excluded, being not credit worthy, the entire case rests on slender titbits here and there. PW . 1 Ramila, PW . 3 Manji are the witnesses, who have alleged to have seen the appellant-Heera going inside the house of Kaudi and another coming out of the house. PW . 1 Ramila has stated that early in the morning when they got up and went out to bring back cattle, Heera was seen coming out of the house of Kaudi. PW . 3 Manji stated to have seen Heera entering in the house at 10. P.M. Both the witnesses did not disclose the said fact even when all the villagers had assembled and police arrived at the spot. The statement of both the witnesses does not inspire confidence. 17. As regards the evidence of recovery of underwear, the same has been discarded by the trial Court on the ground that no semen was detected thereon as per the FSL Report (Exhibit-P/35). The other evidence of recovery of rope has also not been found to be incrimination by the trial Court itself . We do not consider it to be safe to uphold conviction of the appellants on such thin and suspected evidence. 18. Thus, the upshot of the discussion is that the prosecution has failed to prove its case against the appellants beyond reasonable doubt. We do not consider it to be safe to uphold conviction of the appellants on such thin and suspected evidence. 18. Thus, the upshot of the discussion is that the prosecution has failed to prove its case against the appellants beyond reasonable doubt. The trial Court has fallen in error in convicting the appellant-Heera of charge of murder and rape of Miss. Seena. As the conviction of not sustainable against appellant-Heera, the conviction of second appellant-Kaudi for the offence under Section 302 and 376 with the aid of Section 34 IPC is also not sustainable. Thus, both the accused persons are entitled to be acquitted of the charges levelled against them. Before we conclude, we may observe that the passing of sentence of death must elicit greatest concern and solicitude of the Judge because that is one sentence which cannot be recalled. 19. Thus, for the reasons aforesaid, we allow both the appeals and set aside the Judgment of Additional Sessions Judge (Fast Track), Dungarpur dated 08.09.2005 and acquit the accused Heera and Kaudi of the charges levelled against them. We direct that they shall be released forthwith if not required in any other case. The murder reference is rejected.