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2009 DIGILAW 44 (PNJ)

Raju v. State of Haryana

2009-01-08

DAYA CHAUDHARY, SATISH KUMAR MITTAL

body2009
JUDGMENT Daya Chaudhary, J 1. The present appeal arises out of judgment and order dated 30.11.1998 in Sessions Case No. 8 of 1998 (Sessions trial No.12 of 1998) holding accused-appellant guilty of offence under Section 302 IPC and sentencing him to imprisonment for life with a fine of Rs.1000/-and in default of payment of fine to further undergo further RI for six months. 2. Briefly, the facts of the case as put up by the prosecution are that on 8.2.1998 complainant, Abdul Zamil, father of the deceased-Riabulnisha, made a statement before the police that he had three daughters from his first wife, who had died, and after her death he contracted second marriage with Shahjahan from whom he had three daughters and one son. Out of the three daughters from his first wife, Badrunisha Rafiqulnisha is the eldest, next to her is Kitabunisha and younger to her is Riabulnisha. It was further stated by the complainant that on 8.2.1998 itself he had come to know that his eldest daughter Rafiqulnisha was having illicit relations with Raju, who was residing in a third house to his house. Complainant also stated that on 8.2.1998 he and his wife after leaving their children in the house had gone for their job but returned early as they did not get any work. After reaching to their home, they did not find their children in the house. The house of Raju was closed but it was not bolted from inside. Complainant and his wife heard the cries of their daughter Riabulnisha from inside the room of Raju, upon which they went running, opened the door and saw that an electric wire was wrapped around the neck of their daughter Riabulnisha and Raju and Rafiqulnisha were holding one end of electric wire each towards their side. It was also stated by the complainant that upon raising alarm, both the accused left the wire and his daughter Riabulnisha fell on the ground and died. Some persons from the neighbourhood came there. Out of anger, complainant also gave a danda blow on the head of the accused-appellant and after leaving his wife Shahjahan near the dead body, he reached the police station to lodge the FIR. 3. On the basis of the statement made by the complainant, FIR was registered against the accused-appellant and he was arrested on the same day. Out of anger, complainant also gave a danda blow on the head of the accused-appellant and after leaving his wife Shahjahan near the dead body, he reached the police station to lodge the FIR. 3. On the basis of the statement made by the complainant, FIR was registered against the accused-appellant and he was arrested on the same day. After completion of investigation, the accused was challaned and case against him was committed to the Court of Sessions for trial. 4. To bring home the charges against the accused, prosecution examined as many as five witnesses. 5. Brij Bhushan Gautam Photographer (PW-1), stated on oath that on 8.2.1998, on the directions of the police, he went to Sham Nagar, Karnal and took photographs Ex. P1 and Ex. P2 at the spot. Ex. P3 and Ex. P4 are the negatives. 6. Abdul Zamil (PW-2), complainant and father of the deceased-Riabulnisha reiterated the same facts as stated in the FIR. 7. Dr. (Mrs.) Subhita Ajmani (PW-3) stated that on 8.2.1998 she conducted postmortem examination on the dead body of Riabulnisha, aged about 12 years and noticed following injuries:- “The brain was congested. 1. Abrasion 1 x .5 c.m. over the chin. 2. Abrasion 1 x .5 c.m. over the right ala of nose. Right and left lungs congested. Emphysematous patches on the surface of lungs were present. Liver, spleen and kidneys were congested. Rest of the organs were healthy.” 8. As per opinion of the Doctor, cause of the death was asphyxia as a result of strangulation which was antemortem in nature and was sufficient to cause death in ordinary course of nature. The probable time between the injury and death was within few minutes and between death and postmortem was within 24 hours. 9. Shahjahan (PW-4) wife of the complainant-Abdul Zamil and mother of the deceased also reiterated the same facts as stated by Abdul Zamil in the FIR. She, however, stated that when she and her husband Abdul Zamil reached their house they heard the cries of Rafiqulnisha and Riabulnisha from the house of accused-appellant. When they went to the house of accused-appellant and on pushing the door which was slightly opened, and through chink of the door they saw that electric wire was rapped around the neck of Riabulnisha. 10. When they went to the house of accused-appellant and on pushing the door which was slightly opened, and through chink of the door they saw that electric wire was rapped around the neck of Riabulnisha. 10. Fateh Singh (PW-5), SHO, Police station City Karnal stated that on 8.2.1998, he was posted as Inspector/SHO Police Station Karnal and on the basis of statement of complainant-Abdul Zamil, formal FIR Ex.PA was recorded by Om Parkash, Sub Inspector, whose signatures and handwriting were identified by him as he was working under him at that time. Om Parkash, SI prepared rough site plan Ex.PC with correct marginal notes. Thereafter, he made an application for postmortem to the SMO, General Hospital, Karnal and prepared inquest report Ex.PE. Fateh Singh (PW-5) further stated that he also visited the place of occurrence and took over the investigation from Om Parkash, SI. Fateh Singh (PW-5) recorded the statement of Shahjahan at the spot. Accused-appellant Raju was also arrested on the same day. PW-5 further stated that on 8.2.1998, ASI Prem Singh produced before him sealed parcel containing electric wire and clothes of deceased-Riabulnisha. The parcel was sealed with the seals of the doctor and the same was taken into possession vide Ex. PF. After completion of necessary formalities, he prepared report under Section 173 Cr.P.C. against accused-appellant and supplementary challan against co-accused Rafiqulnisha, who was minor at that time. 11. After closure of prosecution evidence, Statement of accused-appellant under Section 313 Cr.P.C. was recorded, to which, he denied the allegations against him and stated that he has been falsely implicated in this case. Accused-appellant further stated that he had illicit relations with Shahjahan, step mother of Riabulnisha and she had seen them in compromising position whereupon Shahjahan murdered Riabulnisha. It was also stated by accused-appellant that occurrence was also witnessed by Rafiqulnisha and he has been falsely implicated in this case by Abdul Zamil and Shahjahan. He also stated that he had also given a sum of Rs.5000/-to Abdul Zamil, father of the deceased, on credit and on his demand, Abdul Zamil refused to pay the same and because of this reason, he has been falsely implicated in this case. 12. He also stated that he had also given a sum of Rs.5000/-to Abdul Zamil, father of the deceased, on credit and on his demand, Abdul Zamil refused to pay the same and because of this reason, he has been falsely implicated in this case. 12. After hearing counsel for both the parties and perusing the statement of the witnesses, trial Court has convicted the accused-appellant under Section 302 IPC and sentenced him to undergo life imprisonment vide order dated 30.11.1998, which is the subject matter of challenge in the present appeal. 13. Mr. Saurabh Mohunta, Advocate, Amicus Curiae, for the appellant has argued that there are contradictions in the statement of prosecution witnesses. As per the statement of Abdul Zamil (PW-2), door of the room of Raju, accused-appellant was closed and when he was asked to open the door, the same was opened by him and he saw that an electric wire was wrapped around the neck of Riabulnisha. However, Shahjahan (PW-4) wife of Abdul Zamil stated in her statement that when she and her husband reached to their house, they heard voices of their daughters from inside the room of Raju accused-appellant and when they pushed the door, which was slightly opened and through the chink of the door they saw an electric wire wrapped around the neck of Riabulnisha. Mr. Mohunta further argued that learned trial Court has convicted the accused-appellant only on the basis of presumption and has not properly appreciated the evidence and statements of witnesses. The evidence of the prosecution is unreliable being based on the statement of interested witnesses as no independent witness has been examined by the prosecution inspite of the fact that many neighbours were present at the time of occurrence Mr. Mohunta also argued that the prosecution case hinges on the statements of Abdul Zamil, father and Shahjahan, step mother of the deceased, which do not inspire confidence. Mr. Mohunta also states that the appellant has falsely been implicated in this case as the father of the deceased had borrowed a sum of Rs.5000/-from the accused and even on demand the same were not returned. Moreover, the accused-appellant has categorically deposed in his statement recorded under Section 313 Cr.P.C. that he had illicit relations with Shahjahan i.e. mother of the deceased and the accused-appellant has been falsely implicated in this case by the parents of the deceased. 14. Mr. Moreover, the accused-appellant has categorically deposed in his statement recorded under Section 313 Cr.P.C. that he had illicit relations with Shahjahan i.e. mother of the deceased and the accused-appellant has been falsely implicated in this case by the parents of the deceased. 14. Mr. Partap Singh, Sr. DAG, Haryana, appearing on behalf of State of Haryana has argued that the prosecution has fully proved its case beyond any reasonable doubt and if there is any discrepancy whatsoever in the statement of the prosecution witnesses, the same is minor and bound to occur with long lapse of time and are not at all fatal to the case of prosecution. 15. We have heard the arguments of learned counsel for both the parties and perused the evidence available on record carefully. 16. The argument of learned counsel for the accused-appellant that there are discrepancies and contradictions in the statements of eye witnesses, does not carry any weight. We have gone through the statement of both the eye witnesses. Some minor discrepancies are there in the statements of both the eye witnesses, which are bound to occur after long lapse of time but in our opinion they are not fatal to the case of prosecution. The only discrepancy pointed out by the learned counsel for the accused-appellant that Abdul Zamil, PW-2 has stated that on return to his house he heard cries of his daughters from the room of accused-appellant and thereafter he rushed towards his room, whereas, Shahjahan, PW-4 stated that she alongwith her husband went to the house of accused-appellant and after the door was opened slightly, they saw through chink of the door that electric wire was rapped around the neck of Riabulnisha. Since the house of both the eye witnesses and that of accused-appellant were situated in the same line and were at a distance of one house in between, therefore, such type of discrepancy in the statement of PW-2 and PW-4 does not create any dent in the prosecution case. Moreover, the veracity of the statement of two witnesses if linked up with the factum that accused-appellant was also present in the room; the dead body of the deceased was found in the room of accused-appellant; whether the door was opened by accused-appellant or not are also minor discrepancies, which cannot demolish the testimony of the witnesses. 17. Moreover, the veracity of the statement of two witnesses if linked up with the factum that accused-appellant was also present in the room; the dead body of the deceased was found in the room of accused-appellant; whether the door was opened by accused-appellant or not are also minor discrepancies, which cannot demolish the testimony of the witnesses. 17. The learned counsel for the appellant next argued that motive of the complainant to falsely implicate the accused-appellant has been proved, therefore, the conviction of the appellant cannot be sustained. In our opinion, this contention does not carry any weight as the co-accused is also the daughter of complainant-Abdul Zamil and no father would like to falsely implicate his real daughter in a false case. Moreover his minor daughter was murdered and the dead body was found in the room of accused-appellant. The statement of accused-appellant that an amount of Rs.5000/-was given to the father of the deceased and as the same was not returned, and when the said amount was demanded, he was falsely implicated, is also not believable as nobody would like to put at stake the prestige of the family including his two minor daughters. 18. As a sequel to what has been discussed above, we do not find that there is any legal infirmity for interference in judgment and order of trial Court and the present appeal being devoid of any merit is hereby dismissed. The appellant, if on bail, is directed to surrender to custody to serve the remainder of sentence. Appeal dismissed.