Research › Search › Judgment

Rajasthan High Court · body

2005 DIGILAW 512 (RAJ)

Shanti Devi v. State of Rajasthan

2005-02-16

S.P.PATHAK

body2005
Judgment B. Prasad, J.-The present appeal has been filed by Smt. Shanti Devi and three other accused being aggrieved by the Judgment of the Court of Additional Sessions Judge, Annopgarh, dated 19.06.2002 in Sessions Case No. 13/01 whereby the accused appellants were convicted and sentenced as under :NAME OF ACCUSED PUNISHED U/S PUNISHMENT AWARDED 1. Smt. Shanti Devi 302 IPC Life imprisonment alongwith fine of Rs. 100/-, in default of payment of fine to undergo further one months R.I. 201 IPC 5 Years R.I. & a fine of Rs. 100/-in default of payment of fine to further undergo one months R.I. Both the sentences were ordered to be run concurrently. 2. Shankar Lal 201 IPC 5 Years R.I. & fine of Rs.100/-in default of payment of fine to undergo one months additional R.I. 3. Jagdish 201 IPC -do 4. Mani Ram 201 IPC -do 2. Prosecution was initiated on the basis of First Information Report [Ex.P-1] lodged by PW. 2 Rajesh Kumar son of deceased Om Prakash at Police Station Gharsana. First informant in the report stated that on 22.08.1997 his father had gone to the house of accused Smt. Shanti Devi. He had taken a sum of Rs. 300/-alongwith him. His father used to frequently go to the house of accused Smt. Shanti Devi. She used to address his father as brother. Earlier his father had gone to Sri Ganganagar alongwith accused Smt. Shanti Devi on 22.08.1997. After 22.08.1997, Smt. Shanti Devi visited their place thrice. Once when he had gone to the house of Shanti Devi, she informed complainant that his father is entangled in a case involving Charas. She assured the complainant that she would intervene through some broker and would get his father released. On 01.09.1997, Postman brought a letter to his house. In that letter, address was in the handwriting purported to be of Jagdish, who is son of accused Smt. Shanti Devi. On that day i.e., on 01.09.1997 Smt. Shanti Devi also came to their residence. She asked for Rs. 5,000/-for getting the father of the complainant released. She was given this money after the same was taken as loan from the commission agent. The complainant expressed that Smt. Shanti Devi, his son and others are involved in the conspiracy of doing crime (sic) with his father and asked for investigation. She asked for Rs. 5,000/-for getting the father of the complainant released. She was given this money after the same was taken as loan from the commission agent. The complainant expressed that Smt. Shanti Devi, his son and others are involved in the conspiracy of doing crime (sic) with his father and asked for investigation. On the basis of the aforesaid statement, First Information Report No. 53/1997 was registered at Police Station Gharsana. The same has been tendered in evidence at the trial as Ex. P-2. Accused Mani Ram, Jagdish and Shankar Lal were arrested during the course of investigation. At the instance of Smt. Shanti Devi dead body of Om Prakash was recovered, from a place near the house of Smt. Shanti Devi. It was from a pit which she dug up. Post mortem was conducted on the dead body. During investigation, two photographs were also seized. The handwriting of the accused Jagdish was also compared. Usual investigation was conduced. A charge sheet under Sections 302,302/120-B, 364, 364/120-B and 201 IPC was filed. After commitment charges were framed under the aforesaid sections. Accused denied the charges and claimed trial. 3. At the trial, prosecution examined as many as 24 witnesses and tendered 50 documents in evidence and produced 14 articles. Defence examined one witness and tender 8 documents in evidence. After examining the prosecution evidence, the trial Court considered the case in detail and ultimately found that the case is based on circumstantial evidence. There was no direct evidence available on record. The trial Court concluded that on 22.08.1997 deceased Om Prakash had gone to the house of accused Smt. Shanti Devi. He had not been seen alive thereafter. The trial Court has found that fact of deceased Om Prakash going to the house of accused Smt. Shanti Devi is established from the evidence of PW. 1 Guddi and PW. 2 Rajesh Kumar. Second circumstance relied upon by the trial Court was that when Om Prakash did not return for 5-7 days PW. 2 Rajesh Kumar was sent to the house of the accused Smt. Shanti Devi. At that time reply of Smt. Shanti Devi was found to be false. By false explanation, she has become a target of suspicion. Third circumstances relied upon by the trial Court is that accused had demanded a sum of Rs. 2 Rajesh Kumar was sent to the house of the accused Smt. Shanti Devi. At that time reply of Smt. Shanti Devi was found to be false. By false explanation, she has become a target of suspicion. Third circumstances relied upon by the trial Court is that accused had demanded a sum of Rs. 5,000/-and had in fact taken this amount from Rakesh Kumar, after Rajesh Kumar took it from commission agent for getting Om Prakash released from his involvement in the criminal case regarding Charas. PW. 13 Tersem Ram is the witness, who states that Rajesh Kumar asked for Rs. 5,000/-which was given to him. This amount was in turn given to Smt. Shanti Devi. The Court has found that in cross-examination of this witness nothing substantial has been made out to discard his testimony and this circumstance connects the accused with the crime. Another circumstance which is being relied is that a letter being Ex.P-19 was sent to the house of deceased. This was shown to be purportedly written by the deceased Om Prakash exhibiting that the deceased is entangled in a case of Charas and he is in a Bikaner Police Station. In this letter this was also mentioned that this fact should not be disclosed to the brothers of the deceased and a hope was expressed that he will be get released very soon. That letter was scribed by some student and the address on the letter was made in the handwriting of accused Jagdish which is established by the evidence of the Investigating Officer which was compared with Article 1. The learned trial Court found that the letter was got written by the accused Shanti Devi and address was scribed by accused Jagdish. Yet, another circumstance pressed into service against Smt. Shanti Devi is her extra judicial confession which she made before the Members of the Panchayat PW. 8 Om Prakash and PW.9 Shanker Lal being Members of Panchayat has proved this extra judicial confession. The trial Court has observed that in the testimony of PW. 8 Om Prakash and PW. 9 Shanker Lal nothing substantial has been elucidated. The fact of extra judicial confession has been found to be established. The trial Court also found another circumstance to establish the guilt of Smt. Shanti Devi and that was the information given by this accused and at her instance the dead body was recovered. 8 Om Prakash and PW. 9 Shanker Lal nothing substantial has been elucidated. The fact of extra judicial confession has been found to be established. The trial Court also found another circumstance to establish the guilt of Smt. Shanti Devi and that was the information given by this accused and at her instance the dead body was recovered. The dead body was recovered in the presence of PW. 24 SDM, Anoopgarh. Recovery of dead body has also been believed and identification of the dead body has been made on the basis of articles found alongwith the body. Alongwith the dead body shoes, watch, bag etc. were recovered. Defence suggested that the dead body belongs to Nathu Ram which was not accepted because the articles as recovered were not buried alongwith the dead body according to the customs of Nathu Rams family and, therefore, the distinction was drawn. 4. After discussing the evidence, the trial Court came to the conclusion that the offence under Section 302 IPC is clearly established against accused Smt. Shanti Devi. However, against the other accused persons offence under Section 302 read with Section 120-B IPC was not found established, so also offence under Sections 364 and 364/120-B IPC were not held made out. Apart form this, Smt. Shanti Devi was held guilty under Section 201 IPC alongwith three other persons namely Jagdish, Mani Ram and Shankar Lal Smt. Shanti Devi has been sentenced to life imprisonment and a fine of Rs. 100/-under Sections 302 IPC. All the accused persons have been sentenced to 5 years rigorous imprisonment and a fine of Rs. 100/-was imposed one each of them for the offence under Section 201 IPC. 5. Learned Counsel for the appellants assailing the findings submitted that the most important circumstance as has been found established is extra judicial confession as deposed by PW. 8 Om Prakash and PW. 9 Shankar Lal. According to the learned Counsel for the appellants these statements fall short of establishing extra judicial confession against the accused persons because the same is hit by Section 24 of the Indian Evidence Act because the same is not voluntary. 8 Om Prakash and PW. 9 Shankar Lal. According to the learned Counsel for the appellants these statements fall short of establishing extra judicial confession against the accused persons because the same is hit by Section 24 of the Indian Evidence Act because the same is not voluntary. Section 24 of the Indian Evidence Act is quoted as under:- Confession caused by inducement, threat or promise, when irrelevant in criminal proceedings.-A confession made by an accused person is irrelevant in a criminal proceeding , if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. 6. The argument of the learned Counsel for the appellants is misconceived and is of no consequence. The fact of extra judicial confession as deposed by PW.8 Om Prakash and PW.9 Shankar Lal was made in Panchayat. According to the learned Counsel for the appellants these statements fall short of establishing extra judicial confession against the accused persons because the same is hit by Section 24 of the Evidence Act because the same is not voluntary. 7. We have considered the question raised by the learned Counsel for the appellants. In terms of Section 24 of the Indian Evidence Act, it cannot be said that there was any pressure or inducement, threat or promise having reference to the charge against the accused person made by some one in authority. Thus, the rigor of Section 24 is not relevant for the present case. The only thing deposed by the witnesses is that the witnesses pressured her. The pressure so made would not come within the definition of "threat" and thus it cannot be said to be made by a person and authority and therefore, such inducement threat and promise being not made by any person in authority the rigor of Section 24 cannot come into play. 8. In the light of the aforesaid argument of the learned Counsel for the appellants is misconceived and is of no consequence. 8. In the light of the aforesaid argument of the learned Counsel for the appellants is misconceived and is of no consequence. The fact of extra judicial confession is made out clearly by the testimony of these two witnesses PW. 8 Om Prakash and PW.9 Shankar Lal. If the prosecution case is examined from the point of view of stand of accused Smt. Shanti Devi who attempted to give one after another, false explanations for unavailability of the deceased. The deceased Om Prakash after he had gone to her house on 22.08.1997, various attempts were made by her to show his disguised availability. It only goes to show that there was something which she wanted to hold back. In this background, she had made extra judicial confession. The dead body has been recovered at her instance just near her house. This shows that she with her proximity with the deceased had every opportunity to commit the crime. The circumstances relied upon by the trial Court clearly establish that there was a clear chain of circumstances linking the accused Smt. Shanti Devi with the crime. In this background, the findings recorded by the trial Court are not considered by this Court to be of lesser importance. 9. Learned Counsel for the petitioner relied upon a Supreme Court decision in the matter of Dwarkadas Gehanmal vs. State of Gujarat, reported in 1998 (8) Supreme To-Day 505. There cannot be any two opinions about the weak character of the evidence of extra judicial confession. But in the instant case extra judicial confession is not the only piece of evidence. That being the position, the law relied upon by the learned Counsel for the petitioner would be of no assistance. Other circumstances point out towards the complicity of the accused it is seen as an additional circumstance. So also the case of State of Haryana vs. Jagbir Singh & Anr., reported in 2004 RCrD page 726 is of no consequence because there was no pressure put by the Panchayat on the accused to make the statement. Learned Counsel for the petitioner has further relied upon a decision of Division Bench of this Court in the matter of Sarjeet Singh vs. State of Rajasthan, 2001 Rajasthan CrLR page 609. In this case extra judicial confession of accused suffered from infirmities, which is not in the case in hand. Learned Counsel for the petitioner has further relied upon a decision of Division Bench of this Court in the matter of Sarjeet Singh vs. State of Rajasthan, 2001 Rajasthan CrLR page 609. In this case extra judicial confession of accused suffered from infirmities, which is not in the case in hand. Another case relied upon by the learned Counsel for the petitioner Surinder Kumar vs. State of Punjab in 1998 CrLR (SC) page 776, it was the case of joint extra judicial confession and, therefore, this case will also not govern the case of the petitioner. 10. In the background that the evidence of extra judicial confession has been held to be good enough on the basis of testimony of PW. 8 Om Prakash and PW. 9 Shankar Lal and the conduct of the accused Shanti Devi in taking false stands show that she had a guilty mind. Recovery of the dead at her instance also clinches the issue against her. In that background, her conviction under Section 302 IPC cannot be found to be illegal. As regards the conviction under Section 201 IPC of Smt. Shanti Devi and other three accused persons, they have been found aiding Smt. Shanti Devi in doing away with the evidence of crime. Therefore, their conviction is also not to disturb. The conviction part of the Judgment of the trial Court is up-held. As regards the sentence of Smt. Shanti Devi under Section 302 IPC is concerned, the same is maintained. As regards her sentence awarded under Section 201 IPC and the other accused persons it would be in the interest of justice, if they are sentenced to the period which they had already undergone. 11. Consequently, the appeal is partly allowed. Conviction of all the accused under Section 201 IPC is upheld and substantive sentence is modified to be one, which is already under-gone by the accused. As regards the conviction and sentence of Smt. Shanti Devi under Section 302 IPC is concerned, no interference is made in them. She is in custody and she will serve out her sentence as ordered. The other accused persons are on bail. Their bail bonds are cancelled.