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2010 DIGILAW 751 (RAJ)

Himmat v. State of Rajasthan

2010-04-02

G.S.SARRAF, NARENDRA KUMAR JAIN

body2010
JUDGMENT Hon'ble SARRAF, J.-The accused Himmat has preferred this appeal against the judgment dated 9.6.1983 passed by Sessions Judge, Alwar in sessions case No. 68/82 whereby he has been convicted under Section 147 and Section 302 read with Section 149 IPC and he has been sentenced to one year rigorous imprisonment under Section 117 IPC and under Section 302 read with Section 149 IPC he has been sentenced to life imprisonment and a fine of Rs. 500/- and in default of payment of the fine further rigorous imprisonment for one year. 2. Brief facts giving rise to this appeal are that on 4.6.81 Shyarn Lal, Serpanch, Gram Panchayat Sonkh lodged a report (Ex. P.8) at the police station Kathumar, district Alwar that a dead body of an unknown person was lying in the well known as Kadamwala belonging to one Hukam Chand Mali. Pursuant to the information the police recovered the dead body from the well. The post-mortem was conducted by Dr. Mahesh Chand Gupta Medical Officer Incharge Primary Health Centre Kathumar on the same day. The postmortem report is Ex. P.17. The cause of death of the deceased was asphyxia resulting from drowning. 3. On 9.6.81 a case was registered under Section 302 read with Section 34 IPC by the police station Kathumar on the basis of a report (Ex. P .16) lodged by one Ramjilal, brother of the deceased, wherein it was alleged that his brother Sri Ram was having illicit relations with one Anguri and he suspected complicity of Himmat, Bhajan, Sohan Lal, Hari Singh, Samay Singh, Hukrna, Sughad, Khemchand, Gullan Jat, the husband of Mst. Santa and Mohan Jat in the murder of his brother Sri Ram. The FIR is Ex.P.19. 4. After necessary investigation a charge-sheet and a supplementary charge-sheet were filed against the accused Shivram, Samay Singh, Himmat, Hukma and Sumera under Section 201 and Section 302 read with Section 34 WC in the Court of Munsif and Judicial Magistrate, First Class, Laxmangarh, district Alwar from where the case was committed to Sessions Judge, Alwar. Charges under Secs. 147, 201 IPC and Sec. 302 read with Section 149 IPC were framed to which the accused pleaded not guilty. The prosecution examined twelve witnesses. The accused did not produce any evidence in the defence. 5. Charges under Secs. 147, 201 IPC and Sec. 302 read with Section 149 IPC were framed to which the accused pleaded not guilty. The prosecution examined twelve witnesses. The accused did not produce any evidence in the defence. 5. By the impugned judgment the accused Shivram, Samay Singh, Sumera and Hukma were acquitted and the accused Himmat was convicted and sentenced as stated hereinbefore. Aggrieved, the accused Himmat has filed this appeal. 6. At the outset, it may be made clear that there is no eye witness and the whole case is based on circumstantial evidence. 7. Radhey Shyam PW.1 is the then Tehsildar and Executive Magistrate, Laxmangarh before whom Anguri PW.9 and Ramjilal PW.10 identified the clothes of the deceased. 8. Kishan PW.2 is the witness of confession allegedly made by the accused Shiv Ram but he has turned hostile and he denies that any confession was made by the accused Shiv Ram, Khyali PW.3, Mohan Singh PW.4 and Babulal PW.5 are also hostile and they do not at all corroborate the prosecution story. 9. Shyam Lal PW.6 is the then Serpanch of Gram Panchayat Sonkh who has sent the report Ex. P.8 to the police station Kathumar. 10. Badle PW.7 pleads ignorance about the incident and Rajendra Prasad PW.8 the then ASI at the Police Station Kathumar is a formal witness. 11. Ramjilal PW. 10 is the brother of the deceased who has lodged the report Ex.P.10 at the police station Kathumar. 12. Dr. Mahesh Chand Gupta PW.11 has conducted postmortem of the deceased and Yaduveer Pandey PW. 12 is the Investigating Officer. 13. The star witness of the prosecution is Anguri PW.9 She has deposed that she was first married to one Bhagwan Singh with whom she lived for about 5-6 years. She then came to her father's house from where the accused Himmat took her to the house of his brother Shivram where she lived for about nine months. Thereafter she married the accused Himmat. The deceased Sri Ram was the driver of the tractor owned by the accused Shivram. She had illicit relations with Sri Ram and this was within the knowledge of the accused Himmat also. She has stated that Himmat Samay Singh and his son and the deceased Sri Ram left for the village Januthar by the tractor of Himmat. Hukma and Sughad followed them. She had illicit relations with Sri Ram and this was within the knowledge of the accused Himmat also. She has stated that Himmat Samay Singh and his son and the deceased Sri Ram left for the village Januthar by the tractor of Himmat. Hukma and Sughad followed them. All returned at about 12 in the mid-night but the deceased Sri Ram was not with them. When she asked Himmat about the deceased Sri Ram then Himmat told her that Sri Ram had gone to the 'sasural' of his brother. After two-three days, she again asked Himmat about the deceased then Himmat told her that he along with Shivram, Samay Singh, Hukma and Sughad tied Sri Ram and then Sri Ram was thrown into a well. 14. Learned counsel for the accused appellant Mr. Deepak Sharma, has argued that the accused appellant has been convicted solely on the basis of the alleged confession made by the accused appellant Himmat before his wife Anguri PW.9 but the statement of the witness regarding the alleged confession of her husband Himmat is not admissible in evidence in view of Section 122 of the Evidence Act and in this connection he has placed reliance on AIR 1970 SC 1876 and 1985 RLR 1018. 15. Section 122 of the Indian Evidence Act is as under:- 122. Communications during marriage.-No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other. 16. The Section consists of two parts. First, a married person shall not be compelled to disclose any communication made to him or her during marriage by his spouse. Secondly, the married person shall not except in suits between married persons or proceedings in which one married person is prosecuted in any crime committed against the other be permitted to disclose by giving evidence in court the communication unless the person who made it or his representative in interest consents thereto. 17. it is not disputed that Anguri PW. 9 was the wife of the accused Himmat at the time of the alleged confession. 17. it is not disputed that Anguri PW. 9 was the wife of the accused Himmat at the time of the alleged confession. Since Section 122 of the Evidence Act prevents disclosure in giving evidence in court of the communication made by the husband to the wife the statement of Anguri PW.9 regarding the alleged confession made by her husband is not admissible in evidence. Learned trial Court has thus committed an error by convicting the accused appellant placing reliance on the alleged confession. We are supported by AIR 1970 SC 1876 and 1985 RLR 1018. 18. In the present case, the circumstance of last seen is also there but that has not been found to be sufficient evidence by the trial court itself as the co-accused have been acquitted and, therefore, in such a situation, the accused appellant too cannot be convicted on the basis of the last seen evidence. The circumstance does not lead to one and only one conclusion that the accused appellant is guilty of the offence charged with and, therefore, the accused appellant is entitled to the benefit of doubt. 19. In the result the appeal is allowed, the conviction of the accused appellant under Section 117 IPC and Section 302 read with Section 149 IPC is set aside and he is acquitted. The accused appellant is on bail and, therefore, he need not surrender.